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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Case No: 2025 - 027650
Reportable: No
Of interest to other Judges: No
Revised: No
SIGNATURE
Date: 24 March 2026
In the matter between:
TRIOTRADE GAUTENG (PTY) LTD Applicant
and
ANGELENE POOLE N.O Respondent
(In her capacity as executrix of the estate
Manuel Duarte Carvalho, Estate No.: 015078/2024)
JUDGEMENT
______________________________________________________________
MOOKI J
1 The applicant claims payment in the amount of R 3 329 698.80, together
with interest. The applicant also seeks an order that Erf 1[...] T[...] D[...]
2
Extension 8 Township Registration Division I.Q. Province of Gauteng
Measuring 616 (six hundred and sixteen) square metres and held by
Deed of Transfer T20862/2021 (the Property) be declared specifically
executable, and that a warrant of execution be issued against the
Property.
2 The claim is based on the following contention. The applicant advanced
credit facilities to Carvalho Food Distributors CC, registration
2010/097600/23 (Carvalho) in terms of a written credit application. Mr
Manuel Duarte Carvalho (the deceased), the sole member of Carvalho,
bound himself as surety and co-principal debtor with Carvalho.
3 The deceased registered a covering mortgage bond in favour of the
applicant, in respect of the deceased’s liability and indebtedness to the
applicant. Such indebtedness included liability arising from the credit
application. The covering bond encumbered the Property.
4 The applicant referenced a certificate of indebtedness, as provided for in
the covering mortgage bond, as proof of the claimed indebtedness. The
applicant avers that neither Carvalho nor the deceased ever disputed the
indebtedness to the applicant and that the applicant routinely furnished
calculations of the outstanding balance. The deceased died on 5
January 2024. The respondent was appointed Executrix on 11 July
2024.
5 The applicant made a demand on the respondent. The respondent
admits the making of the demand. The applicant avers that the
indebtedness to the applicant is common cause, that its security in
respect of the indebtedness is common cause, and that the applicant is
entitled to the foreclosure of the Property.
6 The applicant denied that the Administration of Estates Act 66 of 1965
(the Act) deprived a creditor of the common law right to sue a deceased
estate. The applicant also took issue with the way the respondent carried
3
out her office, contending that the respondent disregarded her
obligations under the Act, warranting a punitive order for costs.
7 The respondent raised non-joinder. She contended that the following
ought to have been joined, namely liquidators of the close corporation ,
the Master of the High Court, other creditors of the deceased estate, and
heirs to the deceased estate.
8 The respondent acknowledged receipt of the applicant’s claim on 19
November 2024 , and that the claim was in terms of both the
acknowledgement of debt and the covering mortgage bond. The
respondent advised the applicant’s attorneys of the status of the
Property, including that the Property had been leased. The respondent
advised that she hoped to file her final Liquidation and Distribution
Account with the Master, and that the applicant, like other creditors, will
have its claim recorded in that account. That was the case because the
applicant “seeks only to ‘steal a march’ on the other proved creditors of
the CC, the general body of creditors of the deceased’s estate and the
deceased’s heir, in respect of the winding -up of the CC and the winding -
up of the deceased’s estate”.
9 The respondent pleaded that she had no knowledge of the credit
application referenced by the applicant; that she did not accept that the
credit application was the basis for the estate’s indebtedness. She
denied too that there was a valid deed of suretyship. The respondent did
not take issue with the demand made by the applicant on 4 November
2024 but pointed out that the debt referred to was the same debt owed
to the applicant by the close corporation and the deceased.
10 The respondent took issue with the relief sought by the applicant. She
contended that g ranting relief will remove the principal asset of the
deceased estate from her control as executrix and that the motive
behind the application is for the applicant to steal a march on the general
behind the application is for the applicant to steal a march on the general
body of creditors of both the close corporation and the deceased estate.
4
She further contended that the application was an abuse of process
because the respondent was dealing with the “debt” owed by the
deceased estate as an executrix of that estate.
11 The respondent contended that she was at a loss to determine the
precise calculation of the amount claimed against the estate , and that
the amount claimed differed from the amount proved against the close
corporation.
Analysis
12 The respondent contends that the Master of the High Court, the
liquidators of the close corporation, creditors of the deceased’s estate,
and heirs of the deceased, should have been joined; as required in Rule
10. The respondent does not say why any of the mentioned persons is to
be joined “as a matter of necessity”. The Respondent recorded in her
written submissions that she would seek a stay of the application to
allow her to join the mentioned persons.
13 The respondent raised the issue of “non-joinder” in her answering
affidavit, deposed to on 16 May 2025. The applicant filed its replying
affidavit on 4 June 2025 , recording, among others, that the respondent
was at liberty to join the mentioned persons. The respondent filed her
written submissions on 7 July 2025. The matter came before court for
argument on 10 November 2025 . The respondent had not brought an
application for joinder by then. This demonstrates that there was never
substance to the respondent’s contention that the various persons whom
she mentioned had to have been joined. There is no substance to this
point.
14 The applicant claims the amount of R3, 131, 735.26 from the deceased
estate, of which the respondent is the appointed executrix . The
deceased bound himself in terms of an application for credit facilities by
the close corporation on 19 October 2022. The deceased bound himself
as surety and co-principal debtor with the close corporation.
5
15 The applicant obtained security for advancing credit facilities by way of a
covering mortgage bond, registered in favour of the applicant by the
deceased over the Property. The covering bond was security for the
deceased’s liability and indebtedness to the applicant. The covering
bond stipulated that a certificate of indebtedness would constitute prima
facie proof of the deceased’s indebtedness. The amount of amount of
R3, 131, 735.26 is stipulated in the certificate.
16 The applicant proved a claim against the close corporation in the amount
of R2,6 million.
17 The respondent admits that the claim is a proper demand against the
deceased estate. The respondent also a dmits that the demand is made
pursuant to a covering mortgage bond. The respondent’s opposition to
the claim is premised on the view that the applicant is one of a number
creditors in the deceased estate, and that the applicant’s claim must be
processed pursuant to the procedure set out in section 35 of the Act.
18 The respondent says that the applicant, in bringing the present
proceedings, seeks to steal a march on other creditors of the deceased
estate, which is why the applicant is required to follow the claims
procedure in section 35 of the Act. The respondent essentially says that
it is not competent of the applicant to claim against the insolvent estate
outside of the mechanism provided for in the Act. The applicant,
according to the respondent, must for example await the finalisation of
the liquidation and distribution account in relation to the deceased
estate.
19 The respondent accepts that the Supreme Court of Appeal 1 dealt with
the question of whether the Act deprived a creditor the common law right
to sue a deceased estate. It was submitted for the respondent that the
1 Nedbank Limited v Steyn and Others 2016 (2) SA 416 (SCA)
6
facts in this matter differ from those considered in the Nedbank matter ;
such as the proceedings in the Nedbank matter being undefended and
bank being said to have relied on a single cause of action in each of the
matters.
20 The respondent contends that the applicant in the present proceedings
relies on a cause of action (a suretyship) which the applicant never
raised against the deceased estate because the claim against the
deceased estate is based on an acknowledgement of debt. The
respondent thus contends that the applicant’s claim may only be
considered in terms of the mechanism provided for in section 35 the Act,
meaning that having submitted a claim based on an acknowledgement
of debt, it is not competent for the applican t to seek recourse against the
estate on the basis of a cause of action premised on a suretyship.
21 It was submitted for the respondent that it is only in exceptional
circumstances that a court would grant leave for the sale of an asset in
the deceased estate through the process of execution, and that such
leave will not be granted before the Master had approved the first
liquidation and distribution account that had laid open for inspection
without objection. It was further submitted for the respondent that the
applicant had not made -out a case for leave as contemplated in section
30 of the Act.
22 The respondent disputes that there was, in any event, a valid suretyship
agreement. That is because there is no reference to a suretyship by the
deceased in the terms and condition section of the credit application
contended for by the applicant. The respondent also says that it is not
possible to determine how the amount of R3, 329,698.80 is made -up,
notwithstanding the certificate of balance relied upon by the applicant.
23 The respondent also submitted that there are material dispute of fact on
the papers and that these disputes were foreseeable. The result,
7
according to the respondent, is that these disputes are to be decided in
favour of the respondent.
24 Clause 21 of the credit application contended for by the applicant states
that the signatory, if “the sole director or member and/or shareholder of
the Applicant, … binds himself as co -principal Applicant, jointly and
severally, for any compliance with the terms … repayment of any debt
that may arise as a result of these terms and conditions;” The deceased
had a 100% interest in the close corporation.
25 There is no serious dispute that the deceased signed the credit
application for the close corporation. The de ceased bound himself for
the indebtedness of the close corporation. The respondent does not
address the fact of the deceased having bound himself as a co -principal
applicant. I do not accept the respondent’s denial of indebtedness on the
stated non -compliance with the requirements for a suretyship. The
founding affidavit is explicit that the applicant relies on the credit
application and the content of the claim of 4 November 2024 as a basis
for relief.
26 The certificate of balance in terms of the covering bond specifies the
outstanding balance as at 31 January 2025 to be in the amount of R3
329 698.80, being the joint and several indebtedness of the close
corporation and the deceased as “co -principal debtors.” The respondent
has not furnished evidence to disturb the certificate of indebtedness
being prima facie evidence in support of the quantum of the
indebtedness.
27 The respondent’s substantive opposition to the relief sought is premised
not on disputing that the deceased estate is indebted to the applicant.
The essence of the opposition is that the law does not permit the
applicant from claiming against the deceased estate by way of legal
proceedings, as opposed to a claim that is informed by following the
procedure in section 35 of the Act. There is no bar to the applicant
8
invoking its common law right to sue a deceased estate. The decision in
Nedbank Limited v Steyn and Others settled the question , in that “ the
procedure laid down in the Act does not preclude the plaintiff from
instituting an action in common law against the estate.”2
28 The deceased is a co -principal debtor with the close corporation,
pursuant to facilities advanced by the applicant to the close corporation.
The applicant is a lso secured creditor in the estate of the deceased , in
the amount of R3 329 698.80 . The indebtedness is secured by a
covering mortgage bond over the Property. The quantum of the
indebtedness is as reflected in the certificate produced by the applicant.
There is no bar to the applicant instituting proceedings against a
deceased estate. The applicant succeeds in its claim.
29 The parties raised several skirmishes arising from whether the parties
settled their dispute. This was not the formal dispute that was submitted
for adjudication by the court. I do not express a view on the issue.
30 I make the following order:
(1) It is declared that the respondent is liable to pay to the applicant the
capital amount of R3 329 698.80 (three million and twenty nine
thousand and ninety eight rand and eighty cents), due owing and
payable as at 31 January 2025, together with interest accruing on the
outstanding balance owed by the respondent to the applicant at the
prime interest rate of 11.25% plus 7% thereon, per annum, calculated
and capitalised monthly in arrears.
(2) It is declared that the immovable property, registered in the name of
the deceased and falling within the said deceased estate
administered by the second respondent and described as:
ERF 1[...] T[...] D[...] EXTENSION 8 TOWNSHIP
REGISTRATION DIVISION I.Q.
PROVINCE OF GAUTENG
2 Nedbank, para 11
9
MEASURING 616 (SIX HUNDRED AND SIXTENN) Square metres
HELD BY Deed of Transfer T20862/2021 (the Property)
is specifically executable
(3) The Registrar is authorised to issue a warrant of execution against
the Property.
(4) The respondent is ordered to pay the costs of the application ,
including the costs of Senior Counsel, on Scale C.
(5) Attorneys for each of the applicant and the respondent are ordered to
cap their fees at 80%, for their failure to comply with item 7 of the
Consolidated Practice Directive 1 of 2024.
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for the applicant: E J Ferreira SC
Instructed by: Thompson Attorneys
Counsel for the respondent: E R Venter
Instructed by: JHS Attorneys
Date heard: 10 November 2025
Date of judgment: 24 March 2026