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[2012] ZAECGHC 62
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Keyter v Van der Meulen NO and Another, In re: Keyter v Keevy and Another (1658/2006) [2012] ZAECGHC 62 (19 July 2012)
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IN THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
(EASTERN CAPE – GRAHAMSTOWN)
Case No.: 1658/2006 |
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Date heard: 23 March 2012 |
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Date delivered: 19 July 2012 |
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In the matter between:
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LEON KEYTER
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Applicant |
and |
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MARIAN ELAINE VAN DER MEULEN N.O.
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First Respondent |
FREDERICK JOHANNES POTGIETER N.O.
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Second Respondent |
In re:
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LEON KEYTER N.O. |
Applicant |
and |
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NEVILLE WILLIAM KEEVY |
First Defendant |
ANDREW PATERSON N.O. |
Second Defendant |
JUDGMENT ON APPLICATION FOR JOINDER
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DAMBUZA, J:
The applicant, Leon Keyter, brings this application in his capacity as the Executor in the Estate of the Late Eric William Danckwerts Keevy (Eric Keevy) who died on 12 June 1989. In this application the applicant seeks joinder of the first and second respondents as further defendants in the main action in which, the applicant, as the plaintiff, seeks an order for delivery of certain livestock to the Estate of the Late Eric Keevy. The order sought in this application is for joinder of the respondents in their capacity as the Executors in the Estate of the Late John Martin Dennis Danckwerts Keevy (John Keevy) who was one of Eric Keevy’s sons.
The background to these proceedings is that Eric Keevy, who was married to Hazell Agnes Keevy (Hazell Keevy), had directed, in his Will, that his wife, Hazell Keevy, would, during her lifetime, have a right of usufruct over all bequests contained in the Will, except in respect of certain assets specified therein. He also directed that certain farms in his Estate be held in trust by his administrators, and that the administrators, “in conjuction with” Hazell Keevy, would arrange for farming operations to be conducted on the farms. The nett income of the farming operations would be paid to Hazell Keevy, and after her death, to Eric Keevy’s son Dan Lawton Roe John Danckwerts Keevy (Dan Keevy). After Dan Keevy’s death the farms or the proceeds from operation thereof would devolve on such of Dan Keevy’s children as he would nominate in his Will.
On 13 September 1993 Hazell Keevy together with the administrators in the Trust of the Estate of the Late Eric Keevy, concluded a lease agreement with Neville William Keevy (Neville Keevy), the first defendant in the main action, in respect of farms and livestock which were assets in the Estate of the Late Eric Keevy. The lease was intended to endure from 1 January 1994 and to terminate upon the death of Hazell Keevy. According to the lease agreement on termination of the lease, Neville Keevy would re-deliver to the administrators of Estate of the Late Eric Keevy, livestock of equal number and value as received by him at the commencement of the lease agreement, together with the farms and implements which were also the subject of the lease agreement. On re-delivery, the implements had to be in the same condition in which they had been received, reasonable wear and tear excepted.
Hazell Keevy died on 29 June 2003 and John Keevy was appointed as the Executor to her Estate.
It is common cause, on the pleadings in the main action, that after the death of Hazell Keevy, Neville Keevy continued to hold the livestock and enjoy the fruits thereof until November 2004 when John Keevy took possession thereof in his capacity as the Executor of the Estate of Hazell Keevy.
The summons in the main action was issued on 25 May 2006. When the action was instituted the applicant sought an order that Neville Keevy and John Keevy deliver to him the livestock or its value and that they be ordered to render an account in respect of the progeny thereof, and any profits accruing to either of them from 29 June 2003 (when Hazell Keevy died) and that they pay to him any amount established as due and payable or deliver any progeny so established.
In the plea Neville Keevy and John Keevy took issue with the applicant’s locus standi. They also pleaded that the reference, in the lease agreement, to the Estate of the Late Eric Keevey (as the Estate to which the livestock would be re-delivered at the expiry of the lease) was in error, and that the relevant clause in the lease agreement ought to refer to the Estate of the Late Hazell Keevy as the Estate to which the livestock should be re-delivered. Further, John Keevy denied that he was obliged to hand the livestock over to the applicant, pleading amongst others, that the obligation to re-deliver the livestock would only come into existence once security for payment of Estate Duty, together with costs relating to the usufructuary assets, had been received. He pleaded that, as the Executor in the Estate of the Late Hazelll Keevy he had a lien over all the usufructuary assets, until the Estate Duty was paid or secured.
It is not in dispute, on the pleadings in the main proceedings, that although security for payment of Estate Duty was tendered by the applicant as required by John Keevy, the livestock was never delivered to the applicant, until a tender was made by the respondents as set out in paragraph 10 below.
John Keevy died on 28 March 2008 and Andrew Paterson, the second defendant in the main action, replaced him as the Executor of the Estate of Hazell Keevy. In an affidavit which forms part of the record in this application, Andrew Paterson states that the livestock in question was never handed to him.
As I have stated the respondents are Executors in the personal Estate of John Keevy. In this application, they state, amongst others, that subsequent to their appointment as the Executors in the Estate of the Late John Keevey, they identified the livestock of which John Keevy was in physical possession, in his capacity as the Executor of the Estate of the Late Hazell Keevy. It is common cause that such livestock or its value was tendered, by the respondents, to Andrew Paterson. It appears, however, that the livestock has not been delivered to Paterson because of logistical reasons; Paterson has no camp to keep the livestock.
The respondents oppose this application. Their case is founded on the absence, in the summons and particulars of claim, of any claim against John Keevy in his personal capacity. They contend that the cause of action as set out in the summons (or as it appears from the pleadings) is the conduct of John Keevy in his capacity as the Executor of the Estate of Hazell Keevy; there is no claim by the applicant against John Keevy in his personal capacity. Their case, as I understand it, is that because all allegations relating to John Keevy pertain to his conduct as the Executor of the Estate of the Late Hazell Keevy and no allegations are made against John Keevy in his personal capacity, there is no basis for joinder of his personal Estate. A further contention is that the Estate of the Late John Keevy has no interest in the outcome of the main litigation and cannot be affected prejudicially by any judgment in relation thereto.
I do not agree. In my view a proper case has been made out for the joinder sought. My view is that the enquiry as to whether the court may order joinder of a third party as a defendant is not necessarily as narrow as the respondents suggest. Rule 10(3) of the Rules of Practice in this court sets out the circumstances in which a court may order joinder of a person as a further defendant in pending proceedings.1
The Rule provides that:
“several defendants may be sued in one action either jointly, jointly and severally, separately or in the alternative, wherever the question arising between them or any of them and the plaintiff or any of the plaintiffs depends upon the determination of substantially the same question of law or fact, which, if such defendants were sued separately, would arise in each separate action” 2
It may appear, at first glance, that John Keevy or his Estate has no “direct and substantial interest”3 in the subject matter of the main proceedings in the sense that the order sought or the order that the court might make would be that the Executor in the Estate of the Late Hazell Keevy must account for the livestock and/or its progeny which order could, ordinarily, be carried out without necessarily prejudicing the Estate of John Keevy. However, my view is that on a closer consideration of the facts of this case, such an order cannot in fact be sustained without prejudicing John Keevy’s Estate. This is because, on the undisputed facts before me Paterson would not be able to render such an account. Only John Keevy could. The extent to which, in this case, the duty to account can only be discharged by one specific Executor (personally) together with his physical possession of the livestock renders fallacious the distinction drawn by the respondents between John Keevy’s official and personal involvement in the Estate of the Late Hazell Keevy.
It is not in dispute that John Keevy kept the livestock on his Estate. It is common cause on the papers that the livestock was never included in the final Liquidation and Distribution Account of the Estate Late Eric Keevy. It was also not part of the redistribution agreement into which the heirs of the Late Eric Keevy concluded in 1993. It remained unaccounted for, during the period starting from November 2004 until the tender of delivery thereof was made by the respondent.
There is no evidence that some other person, other than John Keevy, may be accountable for the livestock for the period that the livestock was in John Keevy’s possession. On the contrary, the evidence is that it is in the course of administering John Keevy’s Estate that the respondents found the livestock and tendered delivery thereof to the current Executor of Hazell Keevy’s Estate. This case is, therefore distinguishable from cases where assets of a deceased’s Estate are either physically located on the Estate property (or are accounted for in the books of account of the deceased’s Estate). It may be that the basis on which John Keevy took possession of the livestock was purely as an Estate Executor; but a court might find that he is/was obliged to account therefore because of his close and personal involvement therewith. I am, however, not making a finding in this regard. But it is in this context that I agree with the contention by the applicant that the mere fact that no specific allegation appears in the pleadings that there was a personal obligation on John Keevy to account cannot be fatal to this application. In my view a court might find that a case is made out for the order sought to be granted against John Keevy’s Estate. In this sense John Keevy’s Estate would be prejudiced by the order and therefore might have a direct and substantial interest. It has been held that the possibility of a direct and substantial interest is sufficient; and that it is not necessary for the court to determine that such interest does, in fact exist.4
For these reasons I am satisfied that a proper case has been made out for joinder of the Estate of the Late John Keevy in the main action. I am of the further view that the costs of this application should be cost in the main action as submitted on behalf of the applicant.
The following order shall therefore issue:
[a] The Executors of the Estate Late John Martin Danckwerts Keevy is joined as a Third Defendant in the main action under case Number 1658/2006;
[b] The costs of this application shall be costs in the main action.
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N. DAMBUZA
JUDGE OF THE HIGH COURT
For Applicant: Adv R.W.N. Brooks instructed by Neville Borman & Botha Attorneys of Grahamstown, Eastern Cape
For Respondents: Adv D.H. de La Harpe instructed by Netteltons Attorneys of Grahamstown, Eastern Cape
1Rabinowitz & Another NO v Ned-Equity Insurance Co Ltd & Another 1960 (3) SA 415 (W)
2Erasmus; Superior Court Practice; B1-94 to B1-95
3That being the established test for determination of whether the court may order joinder of a third party in pending proceedings; See, for example, Herbstein and Van Winsen; The Civil Practice of The Supreme Court Of South Africa; 4th Ed; at 172 (together with the authorities cited therein).
4Herbstein and Van Winsen (supra) at 172. (Ft 54 in which the learned authors refer to the judgment of Herbstein J in Abrahamse & Others v Cape Town City Council 1953 (3) SA 855 (C ) which seems to be based on the consistent reluctance by courts to deal conclusively with issues in which a third party might have a direct and substantial interest without having that party joined in the suit or taking adequate steps to ensure that its judgment will not prejudicially affect that party’s interests.