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[2012] ZAWCHC 370
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ABSA Bank Ltd v Louw NO and Others (16801/12) [2012] ZAWCHC 370 (6 December 2012)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
no: 16801/12
In
the matter between:
ABSA
BANK LIMITED
.................................................................Applicant/Plaintiff
and
MARIA
MAGRIETHA LOUW N.O.
duly
appointed EXECUTRIX in the
ESTATE
OF THE LATE MOERIEDA
FREDERICKS
..............................................................................
First
Respondent/ Defendant
ISMAEL
FREDERICKS ........................................Second
Respondent/ Defendant
(ID
NO )
JUDGMENT
DELIVERED ON 06 DECEMBER 2012
SAVAGE
AJ
[1]
On 16 October 2012 I granted an order in favour of the plaintiff
against the defendants, jointly and severally, the one paying
the
other to be absolved for:
(a) Payment of the sum of R57 965, 92
(fifty seven thousand nine hundred and sixty five rand and ninety
two cents).
(b) Interest on the above amount at
the rate of 8.5% per annum as from 23 May 2012 to date of final
payment, such interest to
be capitalised monthly in advance.
(c) An order declaring Erf. 20420
Mitchells Plain, situate in.the are of the Transitional Metropolitan
Substructure of Cape Town,
Cape Division, in the Province of the
Western Cape In extent: 140 metres, held under deed of transfer No.
T27353/1989, to be
specially executable, inclusive of authority
thereto in terms of the Administration of Estates Act.
(d) Costs of suit on an attorney and
client scale.
[2]
The grant of this order followed an application for summary judgment
in which the plaintiff sought judgment against the defendants
for an
amount of R57 965. 92 with interest and costs arising out of the
defendants’ default under certain mortgage bond
agreements, as
well as an order declaring the property concerned to be specially
executable. The relevant agreements are credit
agreements and the
National Credit Act 34 of 2005
were applicable.
[3]
Subsequent to the order having been granted, the defendants
requested reasons for the order. Reasons for the order granted
are
set out in this judgment.
[4]
On 6 November 2012 the parties were requested to submit written
argument to the court regarding whether there existed a patent
error
in the order granted on 16 October 2012 in that the second defendant
had passed away on 8 January 2012, prior to.the issue
of the summons
on 3 September 2012. Submissions were received from the second
defendant's attorneys only and in spite of an additional
period
provided, no submissions were received from the plaintiff.
The
facts
[5]
The facts relevant to the matter are set out in the particulars of
claim. Erf 20420 Mitchells Plain held under deed of transfer
No.
T27353/1989 (“the property”) was hypothecated as
security under various mortgage bonds for the debt obligations
of
the late Moerieda Hendricks and the second defendant. The monthly
repayments on the loan amount are R1207.12. Defendants were
in
arrears with instalments in the amount of R28 887.80, being
equivalent to arrears of just over 23 months. The property was
not
acquired by means of or with the assistance of a state subsidy and
has a market value of R300 000.00, confirmed by an internal
bank
valuation report that was annexed to the particulars of claim.
Despite demand the arrears outstanding in respect of the
loan amount
remain unpaid The executrix of the estate of Mrs Fredericks was
appointed as such on 31 May 2011, following the death
of Mrs
Fredericks on 6 September 2010.
[6]
The defendants filed a notice of intention to defend the action.
Thereafter application was made for summary judgment and
an
affidavit in support of summary judgment was deposed to by Mr
Guguiethu Zulu of the plaintiff. In this affidavit it was stated
that the defendants do. not have a
bona
fide
defence to the claim and had
entered an appearance to .defend solely for the purpose of delay.
Reasons
for grant of Summary judgment
[7]
The first ground of opposition to the application for summary
judgment is that the defendants have no knowledge regarding
the
progress made in winding up the estate of the late Mrs Fredericks
and inaction on the part of the first defendant is suggested
by the
second defendant’s attorneys. This does not provide a
bona
fide
defence to the claim of
summary judgment and other remedies exist insofar as the
non-performance by an executor of his or her
functions is concerned
in circumstances in which it is an undisputed fact that the
executrix in this matter has been appointed
by the Master of the
High Court as such.
[8]
The second ground of opposition is that the plaintiff is acting in
bad faith given that the first defendant is an employee
of the
plaintiff, in seeking summary judgment in this matter when it ought
to have known that it’s employee was the executor
of the
estate of the first defendant. Once again, I am satisfied that this
does not constitute
a bona fide
defence to a claim of summary judgment given the appointment of the
executrix under a letter of executorship by the Master of
the High
Court and the fact that the office of executor is distinct from the
legal persona of the plaintiff even in circumstances
in which an
employment relationship may exist between the two.
[9]
The third basis for opposition is that the loan amount outstanding,
is not due and payable until the estate is properly wound
up in
accordance with section 35(12) of the Administration of Estates Act
66 of . 1965. In
Nedbank Ltd v
Samsodien NO
2012 (5) SA 642
(GSJ),
Van Oosten J held that a
::
creditor’s common-law competence to enforce, a claim against a
deceased
:
estate has not been abolished by the provisions of the
Administration of Estates Act 66 of 1965
, concluding that the
weight.of authority is in favour of allowing the creditor to avail
himself of the common-law enforcement
procedures. (See
Estate
Stanford v Kruger
1942 TPD 243
Stanford v Kruger
1942 TPD 243
;
Davids v Estate Hal!
1956 (1) SA 774
(C);
Benade v :
Estate Alexander
1967 (1) SA 648
(O)).
[10]
In the circumstances, I am satisfied that the plaintiff is entitled
to pursue its claim for payment of the outstanding loan
amount
against the first defendant. For reasons set out below however, I am
not persuaded that an order is competent against
the second
defendant.
[11]
The final basis for opposition is that there may exist some form of
insurance over the bond which would cover any loan amount
outstanding. The existence of insurance does not provide a defence
to the claim instituted
and
accordingly does not provide a
bona
fide
defence to a claim of summary
judgment.
[12]
For the reasons set out above, I am satisfied that no
bona
fide
defence to the plaintiff’s
claim was placed before this court. The first defendant had
defaulted on payments and is over
twenty three months in arrears.
There was compliance with the terms of the
National Credit Act and
the relevant track and track reports were filed in this regard. It
is not disputed that the first defendant has been unable to
advance
alternative means and/or arrangements to satisfy the arrears and/or
indebtedness. Consequently, there exists no basis
in law on which
to; refuse judgment in respect of payment of the amount of R57 965,
92, plus interest and costs in the terms
sought.
[13]
The order sought in the plaintiff’s particulars of claim
included a prayer that:
“
The
sheriff for the district of the High Court wherein the property is
situate is hereby authorised and directed, in terms of
Section 30 of
the Administration of Estates Act No. 66 of 1965 (as amended) to
sett in execution the immovable property referred
to in paragraph 3
above".
The
applicant did not persist with this relief at the hearing of the
matter and no order is granted in this regard.
Rescission
[14]
After having received the defendants’ request for reasons,
written; argument was requested from the parties: regarding
whether
the order had been erroneously granted against the second defendant
given that it was apparent from the opposing affidavit
of Nadeema
Fredericks that the second defendant had died on 8 January 2012;
prior to the institution of these proceedings by
the plaintiff. The
fact that the second defendant had died prior to the institution of
proceedings in this matter was not which
was drawn pertinently to my
attention at the hearing of the matter.
[15]
Death marks the end of legal personality; to
:
this rule there are no exceptions (Boberg’s Law of Persons and
Family (2
nd
ed) at 50). Accordingly, as the second defendant is deceased he is
not capable of being sued given that he is no longer a person
in the
eyes of the law. In terms of
section 13
of the
Administration of
Estates Act 66 of 1965
, deceased estates are to. be
:
liquidated by a person under letter of executorship and in terms of
section 33(2)
, a court may adjudicate a claim against a deceased
estate.
[16]
The plaintiff is entitled to pursue its claim against the second
defendant not in his own name but against the executor of
the second
defendant’s estate given that he is deceased. In the
circumstances, given the death of the second defendant,
the order
was erroneously granted by this court against the second defendant
in his own name as opposed to in the name of the
executor of his
estate. Consequently, the order made against the second defendant
was one erroneously made given his death and
is accordingly
mero
motu
rescinded in accordance with
the provisions of
rule 42.
[17]
Although the immovable property in question is not a primary
residence, the non-joinder of the executor of the second defendant’s
estate in these proceedings has the result that an order of special
execution against such property was erroneously granted insofar
as
the second defendant's
executor
was not cited in these proceedings. Accordingly, the order of
special execution against erf 20420. Mitchells Plaint granted
on 16
October 2012 is hereby
mero motu
rescinded.
[18]
In the result, and for the reasons set out above, the order made on
16 October 2012 is corrected to read as follows:
1. Judgment is granted in favour
of the plaintiff against the first defendant for-
1.1. Payment
of the sum of R57 965
,
92
(fifty seven thousand
nine
:
hundred and sixty five rand and
ninety two cents).
1.2.
interest on the above amount at the rate of 8.5% per annum as from
:
23 May 2012 to date of final
payment, such interest to be capitalised monthly in advance.
1.3. Costs of suit on an attorney
and client scale.
KM Savage Acting
Judge of the High Court