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[2015] ZAWCHC 80
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B.J.D N.O v E.T N.O and Others (22649/2014) [2015] ZAWCHC 80; 2016 (4) SA 571 (WCC) (3 June 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE division, CAPE TOWN)
Case
No. 22649/2014
DATE:
03 JUNE 2015
In
the judgment between:
[B…….]
[J……] [D…….]
NO
..................................................................................................
Appellant
And
[E...….]
[T……]
NO
.....................................................................................................
First
Respondent
[E……]
[V…….]
.......................................................................................................
Second
Respondent
[J……]
[J……]
NO
.....................................................................................................
Third
Respondent
JUDGMENT
DELIVERED ON 3 JUNE 2015
1.
The applicant is the testamentary executor
in the estate of the late [S……..] [J………]
[W……..]
who died on 24 April 2008. The deceased was the
father of a minor daughter, who was born of his marriage relationship
with the
second respondent. The child is currently 15 years old.
2.
The first respondent is a magistrate in the
district of Riversdale presiding in the maintenance court there. The
third respondent
is a public prosecutor and the maintenance officer
for the Riversdale Magistrate’s Court.
3.
Both the second respondent and the child
are heirs of the deceased and stand to inherit twenty percent of the
remainder of the deceased
estate should there be one. When the
present proceedings were instituted there was an amount of
R1182260,00 in cash available for
distribution to the heirs. This did
not take account of any maintenance claim by the minor child.
However, the capacity of the
deceased estate to pay maintenance at
all was in question because of a large potential claim by ABSA Bank
which might have wiped
out the cash surplus.
4.
By the time this matter was argued the
claim had fallen away, but the executor had not yet lodged a
liquidation and distribution
account with the Master.
5.
A dispute exists as to whether or not the
estate had paid any maintenance to the minor child between December
2011 and April 2014.
Applicant has, however, paid an amount of
R160000,00 from the deceased estate to the second respondent, as an
advance on the child’s
inheritance.
6.
By 29 July 2014, no order for the
maintenance of the child was yet in force. Following an application
by the second respondent,
the first respondent then ordered the
applicant to make certain payments which are now under review:
firstly, to pay R10 000,00
per month towards the maintenance of
the child, commencing on 7 August 2014, and thereafter on the seventh
day of every following
month; secondly, to make a once-off
payment of R720 000,00; and thirdly, to pay an amount of
R7 500,00 on
or before 14 August 2014. All of these
sums were to be paid into the trust account of second respondent’s
attorney.
7.
According to the judgment the first amount
was maintenance that applicant was liable to pay in terms of
section
16(1)(a)(i)
of the
Maintenance Act No. 99 of 1998
. The second amount
was a sum of money that was payable to the mother of the child in
terms of
section 16(1)(a)(ii)
thereof, being the amount second
respondent was entitled to recover from the applicant in respect of
expenses she had previously
incurred for seventy two months in
connection with the maintenance of the child. The third amount
was a contribution towards
the fees of an accountant (one Alberto
Prins), whose expert report had been relied on to quantify the
payment in terms of
section 16(1)(a)(ii).
2
00%">
8.
No appeal against these orders has been
lodged in terms of
s.25
of the Act. Therefore the merits of the
decision by first respondent are presently not in issue.
9.
However, applicant seeks to review and set
aside the proceedings in the maintenance court on the ground that the
first respondent
lacked the jurisdiction to make the aforementioned
orders against the deceased estate pursuant to
s.16(1)(a)
of the
Act. Applicant also claims repayment of the sum of R627 500,00,
together with interest, arising from the payment
he made pursuant to
the second order above.
10.
The Master has not been joined in these
proceedings. Nor is there any indication that he objects to the
orders made by first
respondent, or the payments made or due in terms
thereof.
11.
Applicant contends that an executor is not
“
a person
”
who has a legal duty to maintain any other person; that the
provisions of the
Maintenance Act do
not apply to the obligation of
the deceased estate to maintain the minor child; and that the
maintenance court was not entitled
to make a maintenance order
against the applicant. The applicant further contends that the
High Court is the proper forum
to adjudicate any dispute relating to
the maintenance claims in question.
12.
The applicant also submits that an
interpretation of the
Maintenance Act which
makes an executor liable
to maintain another person is inconsistent with the provisions of the
Administration of Estates Act (“the
Estates Act”);
firstly, because the provisions of sub-sections16(1)(a)(i) and (ii)
of the
Maintenance Act are
contrary to the processes set out in the
Estates Act for establishing rejected claims, and the normal process
of paying out claims
– only after the account has lain open for
inspection – and objections thereto have been dealt with; and
contrary to
the requirements for payment and distribution of monies
to minors (in terms of s.45 of the Estates Act); and because the
requirements
that payments of claims for maintenance can, pending the
confirmation of the account, only be paid with the consent of the
Master
in terms of s.26(1A).
13.
In support of his submissions the applicant
relies on his tendentious interpretation of
s.2(1)
of the
Maintenance
Act. The
section provides as follows:
“
The
provisions of this Act shall apply in respect of the legal duty of
any person to maintain any other person, irrespective of
the nature
of the relationship between those persons giving rise to that duty.
”
14.
This
matter concerns a child. When interpreting
s.2(1)
of the
Maintenance Act the
Court must promote the spirit purport and objects
of s.28(2) of the Constitution,
[1]
which provides as follows:
“
A
child’s best interests are of paramount importance in every
matter concerning the child
.”
15.
The issues raised also need to be
considered in the context of the powers vested in a maintenance court
in terms of subsections
16(1)(a)(i) and (ii) of the Act respectively,
namely: to “
make a maintenance
order against any person proved to be legally liable to maintain any
other person”
; and also, “
to
make an order against such person, if such other person is a child,
for the payment to the mother of the child, of such sum of
money,
together with interest thereon, as that mother is in opinion of the
maintenance court entitled to recover from such person
in respect of
expenses incurred by the mother in connection with …
expenditure incurred by the mother in connection with
the maintenance
of the child from the date of the child’s birth to the date of
the enquiry.
”
16.
The threshold requirements for the
applicability of the
Maintenance Act to
the current dispute are:
a) a legal duty; b) resting on a person; c) relating to such
person’s maintenance of
another person.
17.
It
has become settled law that the duty of a parent to maintain a child
does not cease upon a parent’s death, but is transmissible
and
becomes a debt resting upon the deceased estate.
[2]
The correlative right of a child to such maintenance does not arise
out of any principle of inheritance, but out of the family
relationship between parent and child.
[3]
In the matter of
In
re
Estate
Visser
[4]
OgilvieThompson AJ stated that it was desirable in the interests of
certainty to follow the series of cases that followed
Carelse
v Estate De Vries
;
[5]
and that these decisions are in full agreement with principles of
Roman Law set out in the Digest, which make a father responsible,
during his lifetime, for maintaining his child.
18.
As
a testamentary executor the applicant stepped into the shoes of the
deceased and became the person chosen by the deceased to
represent
him.
[6]
From the date the
applicant received letters of executorship he represented the
estate. This included paying, under
certain circumstances,
estate liabilities.
[7]
Maintenance of the minor child is one such liability.
19.
In
section 1
of the Administration of
Estate’s Act No.66 of 1965 (“the Estates Act”)
“
executor means any person who is
authorised to act under letters of executorship granted or signed and
sealed by a Master, or under
an endorsement made under s.15
.”
An executor is therefore a person in terms of the Estates Act, and
may be regarded as one for purposes of the
Maintenance Act.
20.
In
the light of the above it follows that
while the deceased estate is intact the child’s claim for
maintenance will lie against
the executor, as it did against her
deceased father during the father’s lifetime.
21.
In
terms of s.26(1A) of the Estates Act the executor may, before the
executor’s liquidation and distribution account has lain
open
for inspection and with the consent of the Master, release such
amount of money and such property out of the estate as in
the
executor’s opinion are sufficient to provide for the
subsistence of the deceased’s family or household. This
sub-section was inserted by s.3 of Act 63 of 1990. I
respectfully agree with the remark of Stretch J in
N
B v Maintenance Officer, Butterworth & Others
[8]
(“the Butterworth case”), to the effect that section
26(1A) was specifically designed to alleviate family hardship
pending
the winding up of the estate.
22.
The
use of the word “may” in section 26(1A) is not intended
to confer the executor with a discretion. Instead
it suggests
that the section is intended to enable an executor to do what he
would not otherwise be authorised to do.
[9]
23.
The construction of the Estates Act
suggests that there are two stages at which a child may claim
maintenance from the executor;
that is, before or after the
executor’s account lies open at the office of the Master.
For purposes of adjudicating
the present dispute it is not necessary
to consider whether the
Maintenance Act may
be employed against an
executor during the second stage.
24.
In the context of the Estates Act the
executor’s power to pay maintenance during the first stage is
vested by a section dealing
with the executor’s duty to take
custody and control of property in the estate. An exception to
the executor’s
duty to keep estate assets under control is
created. The power to release money or property for the
subsistence of the deceased’s
family is expressed in the Act
anterior to and independently of the sections which regulate the
separate process of winding up
the estate. That process
involves notice to lodge claims, the lodging and disputing of claims,
the submission to the Master
of the liquidation and distribution
account, paying creditors and distributing the residue of the estate
to heirs and legatees
in accordance with the account. Accordingly,
the executor is not required to follow these processes before paying
subsistence
money. The executor may do so spontaneously if he
is of the opinion that there are sufficient funds for the subsistence
of
the deceased’s family and household.
25.
The maintenance needs of a child with a
claim against a deceased estate may either be immediate or temporally
more remote.
Such needs may require satisfaction either before
the liquidation and distribution account lies open for inspection or
from that
time till the estate is finally wound up. The present
matter relates to the first stage.
26.
The
second stage provides a child in need of maintenance with a different
remedy to the first. The child (and surviving spouse)
of the
deceased normally only receive maintenance payments or benefits
during the second stage;
[10]
that is, after the liquidation and distribution account has lain for
inspection and during the distribution process. A child’s
maintenance claim is a debt
sui
generis
.
It does not compete with the claims of creditors.
[11]
On the other hand such a claim is preferred to the claims of heirs
and legatees whose claims in the event of competition would
have to
abate proportionately. All of this has to be considered before
a final distribution of maintenance is made.
27.
After
the estate has been wound up, if an heir has been overpaid the child
could bring a
condictio
indebiti
to
recover the amount by which the defendant is overpaid.
[12]
A minor child is therefore not left without a remedy for maintenance
at any stage after the passing of a deceased parent.
However,
the remedies that the law provides at each stage differ from each
other.
28.
At
the first stage a responsibility to alleviate hardship is placed
squarely on the executor for the period before his account lies
open
for inspection.
[13]
The
requirement of consent by the Master does not detract from the above
conclusion. Such consent would serve to protect
the executor
from personal liability should he make a wrong distribution.
[14]
29.
The
functions of the Master are to protect the interests of creditors,
heirs, legatees and all other persons having a claim upon
the
estate,
[15]
including
dependent children. Consent by the Master could only
legitimately be refused where the release of estate money
or property
for maintenance would prejudice creditors. In the absence of
such prejudice the Master would be constrained to
protect the
interests of the dependent child and consent to the payment of
maintenance.
30.
The decision of the Master to give or
withhold consent in terms of s.26(1A) of the Estates Act constitutes
administrative action.
An unreasonable refusal of consent would
be subject to judicial review in terms of s.7 of PAJA. Such
refusal is not an insuperable
obstacle to maintenance. However,
it would create a situation where the maintenance remedy of a child
would have to be pursued
in a High Court, albeit that the executor’s
account has not yet lain open.
31.
When the
Maintenance Act commenced
, on 26
November 1999, the Legislature had already vested executors with
authority and responsibility in terms of s.26(1A) of the
Estates
Act. This responsibility must have been within the
contemplation of the Legislature when it enacted the
Maintenance Act,
and
the remedial provisions within it. The pre-amble to the
Maintenance Act indicates
that the intention of the law-maker in
amending existing maintenance laws was to meet the State’s
obligation in terms of
Article 27 of the (United Nations) Convention
on the Rights of the Child. This obligates state parties to
provide maintenance
remedies for a minor child by taking all
appropriate measures to secure the recovery of maintenance for the
child from parents
or other persons having financial responsibility
for the child.
32.
It
follows that Legislature must have intended the
Maintenance Act to
provide a remedy against an executor who fails to carry out
responsibility in terms of
s.26(1A)
; and also that the legal
duty described in
s.2(1)
of the
Maintenance Act includes
a person
such as an executor who was already vested with responsibility for
the subsistence of a deceased’s family in terms
of the earlier
Estate’s Act.
[16]
33.
The establishment of a fair and equitable
maintenance system is sourced by the preamble to the
Maintenance Act
in
the social and economic purposes of the Constitution. Had
the Act not provided a remedy for children affected by s.26(1A)
of
the Estates Act children would have been constitutionally entitled to
demand one;
inter alia
,
to resolve situations such as those which have come to exist in the
present matter.
34.
Six years after the passing of the deceased
the child had allegedly not been paid maintenance. As the
executor’s account
had not been finalised, satisfaction of the
child’s overall maintenance claim could not be satisfied in the
ordinary course
of winding up of the estate. This situation
demands the same cheap and effective maintenance relief for the child
whose parent
is deceased as a child with living parents would be
entitled to. Failing this, inequality before the law would
exist.
35.
In
Troskie
v Troskie
[17]
Trollip J commented, with reference to the old Maintenance Act, 23 of
1963, on the “
simple,
inexpensive and effective procedure
”
in the appropriate magistrate’s court which was “
obviously
designed to expedite and to simplify the procedure relating to
maintenance orders, and above all, to avoid the necessity
of the
parties having to resort to the far more costly procedure of applying
to the Supreme Court for relief.
”
Children of both living and deceased parents are entitled to this
benefit.
36.
In
Bannatyne
v Bannatyne (Commissioner for Equality as Amicus Curiae
[18]
Mokgoro
J observed
“
Our
maintenance courts and the laws that they implement are important
mechanisms to give effect to the rights of children protected
by s.28
of the Constitution. Failure to ensure their effective
operation amounts to a failure to protect children against
those who
take advantage of the weaknesses, of the system.
”
37.
In
Soller
v Maintenance Magistrate, Wynberg & Others
[19]
Van Zyl stated that:
“…
the
maintenance court functions as a unique or sui generis court.
It exercises its powers in terms of the provisions of the
Maintenance
Act and it does so subject to the relevant provisions of the
Constitution, more specifically s 28(2) thereof.
This
constitutional provision overrides any real or ostensible limitations
relating to the jurisdiction of magistrates’ courts.
It
would be absurd, and a costly time-wasting exercise, if an applicant
for relief in a maintenance court should be compelled to
approach the
High Court for such relief because of jurisdictional limitations
adhering to the magistrates’ court. This
could never have
been the intention of the Legislature in enacting the Maintenance Act
with the professed aim of rendering the
procedure for determining and
recovering maintenance ‘sensitive and fair’.
”
38.
In
the
Butterworth
case
[20]
the court stated that
clearly defined questions pertaining to the need versus the duty and
the ability to pay maintenance are issues
clearly falling in the
domain of maintenance investigations and enquiries.
39.
The payment of maintenance prior to the
lying open of the executor’s account involves these clearly
defined questions.
40.
Section 2(2) of the Maintenance Act
provides that the Act may not be interpreted so as to derogate from
the law relating to the
liability of persons to maintain other
persons. This must have reference to the maintenance responsibility
of the executor established
in terms of s.26(1A) of the Estate Act.
41.
The provisions of the concluding clause in
s.2(1) of the Maintenance Act make it clear that the Act is intended
to cast a wide jurisdictional
net. This goes well beyond
relationships by blood. For the reasons stated above it covers
an executor exercising the
responsibility under s.26(A1) of the
Estates Act.
42.
The applicant is therefore a person with a
legal duty to maintain the minor child of the deceased. He is a
person “legally
liable to maintain any other person” for
purposes of sub-sections 16(1)(a)(i) and (ii) of the Maintenance
Act. Before
his account lies open he is a person who may be
subjected to investigation under s.6(1)(a) of the Maintenance Act
arising from
any alleged failure to maintain the minor child of the
deceased.
43.
The applicant
contends
that the judgment in the
Butterworth
case
is of opposite effect to what has
been found above.
There are three
practical distinctions between that case and the present one.
Firstly, it is not clear from the facts of that
case that the
executor had failed or refused to maintain the children, as he has in
this case. Secondly, the executor there
was not joined before
the High Court in order to compel him to carry out his duty to
maintain the children. Thirdly, counsel
for the parties had
formulated the issue for decision in the Butterworth case to be
whether s.6 of the Maintenance Act applied
to the investigation of
claims against deceased estates, “which claims are ordinarily
regulated by the Administration of
Estates Act.”
44.
To some extent the question answered
itself, because it seems to have proceeded on the basis that claims
regulated by the winding
up provisions in the Estates Act were
subject to adjudication by the Court. A failure to pay
maintenance as in the present
case, i.e. before the executor’s
account lies open, was not pertinently raised for consideration.
45.
In
any event, in the course of its judgment the Court felt constrained
to answer the question whether s.6 applies to executors,
and to
determine whether the executor is “
a
person legally liable
”
to maintain dependent children as envisaged in Chapter 3 of the
Maintenance Act. The conclusion reached was that “
in
these particulars circumstances the executor of the estate and a
person legally liable to maintain another person are not, for
the
purposes of a compulsory investigation in the maintenance court, the
same entity.
”
[21]
The answer appears only to consider the winding up stage of the
administration of the estate, as I have described it above.
46.
Insofar as it might have been suggested
that an executor is not a person with a legal duty to maintain
children of the deceased
in need of maintenance before the executor’s
account lies open, I respectfully disagree, for the reasons already
given.
47.
Counsel for the applicant also queries the
fact that the executor would be subject to prosecution, and the
estate subject to execution,
if a maintenance court was allowed to
exercise jurisdiction over the executor and the estate. The
Master can consent to the
release of estate money and property for
maintenance purposes anterior to the winding up stage in the
administration of an estate.
The employment of prosecution of
the executor and execution over released money and property in order
to compel an executor to
provide maintenance, as contemplated in
s.26(1A), is therefore not exceptional.
48.
Applicant’s other submissions relate
to the facts of the case. They should therefore have been the
subject of an appeal.
By virtue of my conclusion above there is
also no reason to consider the other grounds raised by the second
respondent; namely,
that the applicant consented to the jurisdiction
of the maintenance court; or that the court, as the upper guardian of
all minor
children, has the power to confirm the said orders; or that
the applicant failed to launch his review application within a
reasonable
time.
49.
In all the circumstances the application is
dismissed with costs.
DONEN
AJ
[1]
See
s.39(2) of the Constitution
[2]
See:
Carelse
v Estate de Vries
(1906) 25 SC 532
;
Glazer
v Glazer NO
1963 (4) SA 694
(A) at 706 H – 707 A
[3]
See
Van
Zyl v Serfontein
1989 (4) SA 475
(PD) at 477 G – I; and
Hoffman
v Herdan NO & Another
1982 (2) SA at 74 (T) at 275 H
[4]
1948
(3) SA 1129
(C) at 1133 – 1134
[5]
Supra
footnote 1
[6]
See
Ferguson
and Huckell v Langerman and Lorentz
1903
TH 227
[7]
See
s.35 of the Administration of Estate Act No.66 of 1965
[8]
2014
(6) SA 116
ECM para 17
[9]
Compare
BID
Industrial Holdings (Pty) Ltd v Strong
2008 (3) SA 355
(SCA) at paras [60] and [61] at 370 D-I
[10]
See
Law of South Africa, 2
nd
Ed Vol 31, para [448] relying on
Abrie
et al Boedels
Vol 1 15
[11]
See
Lotz
v Boedel Van der Merwe
1958 (2) PH.M16 (O)
[12]
Van
Zyl v Serfontein
1989 (4) SA 475
(C) 477
[13]
Similarly,
s. 12(3) of the Estates Act provides that the Master may specially
authorise an interim curator, appointed until letters
of
executorship have been granted, or a person has been directed to
liquidate and distribute the estate to release such money
and
property out of the estate as in his opinion are sufficient to
provide for the deceased’s family (or household).
The
executor’s powers in terms of s.26(1A) are expressed in
identical terms to those of the interim curator, save that
the
exercise of the executor’s powers are subject to the consent
of the Master.
[14]
See
Meyerowitz
on Administration of Estates and Estate Duty 2007 Ed 12.2A
[15]
See
Wessels
v The Master of the High Court
(1892) 9 SC 18
[16]
The
Administration of Estates Act No. 66 of 1965
commenced on 2 October
1967.
[17]
1968
(3) SA 369
(W) at 370 - 371
[18]
[2002] ZACC 31
;
2003
(2) SA 363
(CC) at 377 at para [28]
[19]
2006
(2) SA 66
(CPD) para [30] at 76 B
[20]
See
paragraph 28
[21]
Judgment:
paragraph 29