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Introduction
[1] The applicant seeks an order against the first respondent for payment in the
sum of R 448 621,93 with interest calculated at 11.25% per year from 1 May
2023 together with costs. No relief is claimed against the second respondent,
save for costs in the event of it opposing the application. The second
respondent did not oppose.
[2] The applicant is a judgment creditor of one Ms Gertruida Gezina Gertenbach
(“the deceased ”). The first respondent inherited the entire free residue of the
deceased’s estate to the value of R 548 423,19. The applicant was unaware of
the deceased’s passing and did not c laim against the estate for payment of the
judgment debt. According to the applicant, had it done so, the amount the first
respondent would have received from the estate would have been less than it
was.
[3] The applicant ’s claim is founded on unjustified enrichment. In particular, it is
framed as being in terms of the condictio indebiti.
Background
[4] The deceased and the first respondent divorced during June 1986 but
reconciled soon thereafter. They co- habited until the date of the deceased’s
death on 20 November 2021.
[5] On 22 November 2010 the deceased and the applicant purchased Erf 1178
Randhart Extension 2 (“ the property ”). It was registered in their names jointly on
22 November 2011. A mortgage bond was passed over the property in favour
of ABSA Bank.
[6] Prior to the purchase of the property, the applicant instituted action against the
deceased during 2009. Protracted proceedings followed. On 19 February 2013
the deceased was ordered to pay R 179 180,00 to the applicant together with
interest calculated at 15,5% per year from 1 December 2009 together with
costs, including costs that had been reserved on 13 March 2012.
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[7] On 14 April 2014 the sheriff served a writ for execution upon the deceased who
was unable to satisfy same . The deceased signed a nulla bon a return , whilst
first respondent deposed to an affidavit that all the movables in their house
were his.
[8] An application was launched to have the deceased’s share of the property
declared executable. On 21 October 2016 an order was granted accordingly.
[9] On 26 September 2019 a notice was issued in a Magistrates’ Court in terms of
section 65(a) of Act 32 of 1944 calling on the deceased to attend a financial
enquiry as she failed to satisfy the judgment of this court. The balance of the
debt as that time was stated as being R 358 360,00 which is inclusive of
interest calculated at the rate of 15,5% per year from 1 December 2009 “… to
the maximum amount of R 179 180,00 in terms of the in duplum rule”.1 The
deceased deposed to an affidavit declaring her sole asset to be her undivided
half share in the property. On 17 January 2020 the financial enquiry was
postponed sine die .
[10] On 13 July 2020 the deceased executed her last will and testament. Effectively,
the deceased bequeathed her entire estate in to the first respondent. After her
death, her half share in the property was transferred to the first defendant on 13
September 2022 in accordance with her last will and testament.
[11] On 17 January 2023 the applicant’s attorneys discovered that the deceased
had passed on and that the transfer of the property had occurred. The
applicant’s attorneys on 26 January 2023 requested the second respondent for
a copy of the final liquidation and distribution account as well as the executrix’s
details. On 7 February 2023 the app licant’s att orneys obtained of the executrix
from the transferring attorneys. A copy of the final liquidation and distribution
account was requested from her. It was refused, but a copy was nevertheless
obtained from the second respondent.
[12] A letter of demand dated 9 March 2023 was addressed to the first respondent
for payment in the sum of R 448 621,93 on the basis that he had been
1 Notice to Appear in terms of Section 65A(1); Founding Affidavit, Annexure “JM9”, CL01 -55
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unjustifiably enriched at the applicant’s expense in that he had received in
value a greater inheritance than he would have received if the applicant’s claim
had been settled by the estate. No reply was forthcoming. On 18 October 2023
the application herein was issued.
Applicant’s case
[13] In essence, the applicant’s case is that after an executor of an estate has
distributed its assets, a creditor who has not made any claim against the estate
has no claim against other creditors of the estate and may not recover anything
from the executor de bonis propriis . The available remedy is the condictio
indebiti which lies against any person, legatee or heir who has received more
than it should have received from a deceased’s assets.
[14] The liquidation and distribution account records assets in the dece ased’s estate
in the amount of R 1 250 000, it being 50% of the stated value of the property.
This consists entirely of the deceased’s undivided half -share in the property.
Total liabilities is R 665 576,81 which consists of the mortgage loan in the sum
of R532 976,69 and administration expenses of R R132 600,12. The
distribution account records the balance brought forward from the liquidation
account as being R 584 423,91. The cash shortfall in the estate in R
665 576,81 which is deducted from R 1 250 000,00 which is the value of the
50% share in the property. This leaves a free residue of R 584 423,19.
[15] The applicant was unaware the deceased passed away and in consequence
did not institute a claim against the deceased’s estate. It is contended that in
terms of the liquidation and distribution account the first respondent inherited
the entire free residue of the estate to the value of R 584 423.19. Had the
applicant ’s claim of R 448 621,93 been settled by the estate, the liabilities in the
estate would have been R 1 114 198,74 and not R 665 576,81. In the result the
balance that would have been available for distribution would have been
reduced from R 584 423,19 as recorded in the liquidation and distribution
account to R 135 801,26. The applicant concludes that the first respondent had
received a value of R 448 621,93 more than he would have, had the applicant’s
claim been settled by the estate. The applicant seeks payment R 448 621,93
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plus interest on the basis that the first respondent had been enriched at the
expense of the applicant to that extent.
The first respondent’s case
[16] The applicant’s claim is ad pecuniam solvendam.2 According to the first
respondent, it is common cause he inherited the deceased ’s 50% undivided
share in the property. The ap plicant’s case is not that the first respondent had
inherited money, but that his inheritance resulted in “… a net benefit of
R 584 423,19 as per the… [liquidation and distribution account]… and which
amount should by rights have been utilized to settle the Applicant’s claim
against the deceased… ”3
[17] The first respondent does not dispute the condictio indebiti is available to a
creditor to recover money from an heir. It is contended the condictio indebiti is a
legal process in action proceedings and that the date of determining enrichment
is litis contestatio which is at the close of pleadings. As this is motion
proceedings, there is no closing of pleadings. In consequence, enrichment
cannot be determined by way of motion proceedings. The claim should not
have been brought by way of motion proceedings and stands to be dismissed.
[18] In the alternative, it is submitted that the issue of whether enrichment occurred
and if so, what the extent thereof is, cannot be determined on the papers .
According to the first respondent it is factually as well as legally incorrect that
his inheritance resulted in a net benefit to him. Enrichment occurs when there is
an increase in the assets of a defendant which would not have occurred but for
the transfer by virtue of the enriching fact, or by a non-increase in the
defendant ’s assets which would have occurred but for the enriching fact at the
expense of the impoverished claimant. In order to acquire the first respondent’s
50% undivided share in the property, he had to effect payment of certain
monies and had to settle to the outstanding mortgage bond. This is indicative of
non-enrichment. The first respondent seeks to distinguish this case from
matters where an heir inherits money. In the latter, there exists prima facie
2 Sounding in money
3 Replying affidavit, par 6, CL01-108 to 109
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enrichment. In this matter, it is the first respondent’s inheritance of the 50%
undivided share in the property that forms the basis of the applicant’s claim. On
these grounds, the first respondent seeks the matter to be referred to trial.
[19] The first respondent further alleges that he was not enriched at the expense of
the applicant. Several grounds are set out in an attempt at substantiating the f
allegation of non-enrichment.
[20] Firstly, the point is taken that the executor took the municipal value of the
property in the sum of R 2,5 million in assessing the value of the deceased’s
undivided half share of the of the property to arrive at the amount of R 1, 25
million. The first respondent’s alleges that the latter amount is incorrect
because it is “… virtually impossible to do an assessment of 50% undivided
share in an immovable property. It does not have commercial value. Nobody
will be interested to purchase a 50% share in a property. Without the other 50%
undivided share, the deceased ’s portion would b e virtually nothing. ”
[21] Secondly, the first respondent was allegedly obliged to settle the deceased’s
half of the bond by paying R 532 976,69 to the estate. This was done by the
first respondent obtaining a bond against the property registered after the
dece ased’s 50% share was transferred to him. According to the first
respondent, this meant that he took over the deceased’s liability in the amount
of R 532 976,69.
[22] Thirdly, the first respondent is alleged to have transferred R 600 000,00 as well
as R 120 000,00 to the estate due to a cash shortfall in the estate. Unless he
paid these amounts, the estate would not have been wound up in the manner it
was. Following upon these payments, an amount of R 13 884,74 was paid to
the first respondent. A copy of the firs t respondent’s bank statements annexed
to his answering affidavit records an amount of R 120 000,00 having been
transferred electronically on 12 April 2022, and R 600 000,00 electronically
transferred on 13 April 2022.
[23] Fourthly, the first respondent avers that the sum of R 13 884,74 which was paid
to him did not enrich him, as he had made several payments in favour of the
deceased after her death.
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[24] Lastly, it is alleged the first respondent made numerous payments to the
deceased whilst she was alive consisting, amongst others, of her water and
electricity account and rates and taxes as well as towards maintenance of the
property. It consists of R 519 800,00 towards payment of electricity, water,
rates and taxes in respect of the property as well as R 350 000,00 for
maintenance and upkeep of the property. The total comes to R 8 69 800,00.
These amounts are acknowledged by the first respondent to be a rough
guestimate.
Analysis and consideration
[25] The first respondent did not pursue the defence raised in his answering affidavit
that the deponent to the founding affidavit was not duly authorised to bring the
application having regard to “… the allegations set out in the founding affidavit. ”
This was in any event fully dealt with by counsel for the applicant in heads o f
argument. In the result I do not need adjudicate upon it. In any event, I found
the argument advanced by the applicant in this regard to be compelling.
[26] No authority or precedent were advanced on behalf of the first respondent
substantiating the submission advanced that the condictio indebiti is a process
in action proceedings. It appears the argument is that the time at which it must
be determined whether or not enrichment is litis contestatio which is at the
close of pleadings, which does not occur in motion proceedings. It follows that
enrichment cannot be determined and thus the application stands to be
dismissed. I disagree. The concept of litis contestatio and its application is not
limited to action procedure. I found no authority that it applies only to action
procedure. In several cases motions were dealt with as if closing of pleadings
and litis contestatio are applicable.4 In the result, I find that it does apply to
motion procedure.
[27] In so far as it is proposed that a claim in terms of the condictio indebiti cannot
be brought on motion, no authority or precedent were advanced on behalf of
4 Antonie v Noble Land (Pty) Ltd 2014 (5) SA 307 (GJ) at [5]. An applicant, after an order for
security for costs was granted, ceded the claim to another, It was common cause that the
cession occurred after litis contestatio. See also Cell C Service Provider (Pty) Ltd v MEC:
Provincial Government: Department of Treasury [2019] 3 All SA 80 (FB) at [48]-[59]
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the first respondent in support thereof other than the statement in Unjustified
Enrichment in South Africa5 to enrichment as an action in which the focus is
upon the extent of a defendant’s enrichment. In my view such a statement is
not authority for the first respondent’s proposition. There are a multitude of
cases in which relief was sought by way of motion based on the condictio
indebiti , the most recent I found being the judgment on 2 October 2024 in
Wamjay Holding Investments (Pty) Ltd V Auckland Park Theological Seminary .6
I agree with the submission advanced by the applicants counsel that the
question as to whether motion or action procedure are to be followed is
dependent upon the existence of bona fide and material disputes that cannot
be resolved on affidavit unless specifically prescribed by statute, public policy
so dictates as decided by a court, or due to practical considerations.7
[28] I now turn to the essential dispute between the parties on the merits, namely
whether the first respondent gained a financial benefit by the claim of the
judgment creditor not having been taken into account in the administration of
the deceased’s estate and its consequent distribution and if so, the extent
thereof as well as whether the disputes are capable of resolution on affidavit. I f
not, the matter is to be referred to trial.
[29] In Nortje v Pool 8 the majority in the Appellate Division rejected the existence of
a general enrichment action at common law in South Africa. Recognising the
difficulties resulting for a plaintiff having to frame a claim for unjustified
enrichment within the confines of the common law condictiones the court
expressed its preference for an incremental development of condictiones over
time. Since Nortje I daresay development of the condictiones have become les s
5 Prof J C Sonnekus, at pp27- 28
6 2024 (3) SA 614 (GJ); See also Randcoal Services Ltd and others v Randgold and
Exploration Co Ltd 1998 (4) SA 825 (SCA) where a counterclaim for a condictio indebiti was
instituted in motion proceedings
7 See cases referred to by applicant’s counsel: BR v TM 2016 (3) SA 417 (GJ) AT 425A-B,
Malema v Rawula (139/2021 [2021] ZASCA 88 (23 June 2021); NBC Holdings (Pty) Ltd v
Arkani Retirement Fund Administrators 9Pty) Ltd [2021] 4 All SA 626 (SCA) at [21]
8 1966 (3) SA 96 (A)
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apparent than real in that the courts have latterly been increasingly compliance
with general requirements of a general enrichment action.9
[30] It is a view held by academics that a claim for enrichment is always framed
under one of the existing common law condictiones and by “…pleading the
requirements of a specific action, the plaintiff will usually succeed in indicating
that the general requirements of enrichment liability have been met. ”10
Enrichment occurs when a defendant is enriched at the expense of a plaintiff
correspondingly impoverished in the absence of any legal cause upon which it
might have occurred. When these elements are present, an obligation arises by
operation of law whereby the defendant is obliged to restore its enrichment to
the plainti ff up to the level of the plaintiff’s impoverishment.11
[31] In calculating enrichment, the first respondent’s obligation to return what has
been obtained sine causa is what remains of the value received. In
consequence, the totality of the first respondent’s assets and liabilities after
enrichment occurred must be compared with what it was prior thereto. A
recipiens ’s liability is confined to the amount of actual enri chment at the time of
the commencement of the action or motion.12
[32] In assessing if a defendant has been enriched, account must be taken of any
performance by the defendant which was juridically connected with the receipt
of the benefit.13
[33] The onus of proving every element required for a claim based on the condictio
indebiti generally lies upon a claimant.14 In civil cases the incidence of onus is
determined largely by considerations of policy and fairness inter partes .15 The
9 See Visser’s succinct exposition of the present state of South African Law in this regard:
LAWSA Volume 17 3rd edition par 207
10 LAWSA supra par 209
11 LAWSA supra at 206; Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193
(SCA) at [17]; McCarthy Retail v Shortdistance Carriers CC 2001 (3) SA 482 (SCA at [15] ff
12 African Diamond Exporters (pty) lTd v Barclays Bank International Ltd 1978 (3) SA 699 at
709H ff; also see Kudu and LAWSA supra at 209 and 215 and the authorties there quoted
13 McCarthy at 290 [16] confirming Govender v Standard Bank of South Africa Ltd 1984 (4) SA
392 (C) at 404D
14 Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1002 (4) SA 202 (A) at 224 with
reference to Mabaso v Felix 1981 (3) SA 865 A at 872H
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onus of proving non-enrichment lies with the recipiens.16 I am not persuaded of
any unfairness or consideration of policy or practice allows for the present
matter to be distinguished from the law as it stands. The facts indicating
whether non-enrichment is indicated generally lies within the knowledge of
recipiens. In my view it is for that reason that it bears the onus of not having
been enriched.
[34] According the recapitulation statement as well as the exec utor’s notes in
liquidation and distribution account, the cash shortfall of R 665 576,81,
consisting of R 532 976,69 towards the bond and R 132 600,12 towards
administrative expenses, was to be paid by the first respondent. A copy of the
first respondent’s bank statement indicates that an a mount of R 120 000,00
was electronically transferred on 12 April 2022. It also reflects R 600 000,00
having been electronically transferred on 13 April 2022, though it is not clear
whence.
[35] In the capital account on the credit side it is recorded that R 120 000,00
towards the cash shortfall had been received from the first respondent. It also
records that the first respondent had applied for and was approved for bond
substitution. The amount of the bond is credited. On the debit side is recorded ,
in addition to the shortfall, municipal clearances of R 10 134,78, as well as
R 115,00 for bespoke executor services and R 3 900,00 towards the Master’s
correspondence fee. An amount of R 5 000,00 is recorded towards bond
cancellation costs with reference to the bond substitution the first respondent
obtained. The balance carried forward to summary is R 12 462,03.
[36] Having regard to the above, it is clear the executor was placed in a position to
complete the administration of the estate by the estate having being credited as
set out above, in particular in that the first respondent had caused the payment
of R 120 000,00 and by having been substituted in respect of the bond. The
estate had the benefit of the substitution by the first respondent in that the debt
owing to ABSA could be credited. In consequence it is clear that the first
respondent had effected performance which was juridically connected with the
16 Kudu supra at [21]
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receipt of the benefit, at least in this respect. No doubt it entailed various other
concomitant expenses to have been incurred.
[37] In my view the first respondent on a balance of probability indicated there has
been at least a measure of non-enrichment. Having regard to the substantial
disputes between the parties it is my view that the c alculation of enric hment
cannot be determined on thes e papers. The exact nature and extent thereof fall
to be determined by a trail court upon discovery and other processes such as
the provision of further particulars and viva voce evidence.
Conclusion
[38] I have considered each of the arguments raised by the applicant’s counsel
pertaining to the first respondent’s case , some of which I found compelling. I
do not express any finding on them as it falls to the trial court to do so.
Order
[39] I make an order as follows:
1. The matter is referred to trial;
2. The application stands as summons;
3. The applicant shall file a declaration within 30 days from the date of
this order;
4. The Uniform Rules of Court in respect of trial and rules to pleadings will
apply;
5. Costs of the application are reserved for determination by the trial
court.
N. S. KRÜGER
NAME OF JUDGE
ACTING JUDGE OF THE HIGH COURT -
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JOHANNESBURG
Electronically submitted
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the parties /
their legal representatives by email and by uploading it to the electronic file of this
matter on CaseLines. The date of the judgment is deemed to be 10 February 2025 .
For the applicant :
Adv M W Verster instructed by BMW Attorneys
For the respondent :
Adv A P Bruwer instructed by Du Plessis, De Heus ,
Van Wyk & Chiba Attorneys
Date of hearing and
argument : 11 November 2024
Date of judgment: 10 February 2025
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