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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

                                                                                                CASE NO: 3712/2013

DATE HEARD:13/02/2014

DATE DELIVERED:19/02/2014

 

In the matter between

MFC, A DIVISION OF NEDBANK LIMITED                                                             PLAINTIFF

and

PRINCESS NOMTHANDAZO DUNA N.O.                                                           DEFENDANT

JUDGMENT

ROBERSON J:-

[1] This is an application for summary judgment for the return of a motor vehicle and costs.  The plaintiff instituted proceedings against the defendant in her capacity as executrix of the estate of the late M.D. (the deceased).  The plaintiff and the deceased entered into an instalment sale agreement in terms of which the deceased purchased a Ford Bantam motor vehicle (the vehicle) from the plaintiff.  In its particulars of claim the plaintiff alleged that instalments due in terms of the agreement were in arrears and that a notice in terms of s 129 of the National Credit Act 34 of 2005 had been delivered to the defendant.  No response having been forthcoming, the plaintiff issued summons and claimed, as it was entitled to do in terms of the agreement, payment of the outstanding balance due, alternatively cancellation of the agreement, return of the vehicle, and damages to be proved.

[2] In her opposing affidavit, the defendant raised two defences.  The first was that the Master of the High Court should have been joined as a party in the action, and the second was that the plaintiff should have lodged a claim against the estate and hence the summons was premature.

JOINDER OF THE MASTER

[3] The defendant stated that the Master has a direct and substantial interest in the matter, because he, as administrator of the estate, had delegated his powers to the defendant.

[4] In United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C), Corbett J (as he then was), after referring to a number of authorities dealing with what constitutes a direct and substantial interest, said the following at 415H:

“…………  and it is generally accepted that what is required is a legal interest in the subject-matter of the action which could be prejudicially affected by the judgment of the Court.”

[5] The Master has the statutory authority in terms of the Administration of Estates Act 66 of 1965 (the Act), to ensure that executors perform their duties, and liquidate and distribute estates in accordance with the provisions of the Act.  In the course of performing his duties, an executor may have to institute action in his representative capacity to recover claims due to the estate.  He may also, as in the present case, be sued in his representative capacity for claims against the estate.  Clearly, having regard to Corbett J’s dictum, the Master does not have an interest in the subject-matter of such claims which could be prejudicially affected by a court’s judgment.

ACTION PREMATURE

[6] The defendant stated that the plaintiff had not exercised the remedy of lodging a claim against the estate in terms of the Act, and the summons was therefore premature.  She added that the vehicle had been put up for sale and that the proceeds would be utilised to pay the estate debt.

[7] There is ample authority that the provisions of the Act dealing with claims against an estate do not deprive a creditor of his common law right to sue the estate.  See ABSA Bank Ltd v Magiet NO [2013] ZAWCHC 7 para [16] and authorities referred to therein.

[8] Moreover in the present matter, in terms of the agreement, the plaintiff retained ownership of the vehicle.  The defendant would therefore not be permitted to sell the vehicle.

CONCLUSION

[9] It follows that neither of the defences raised would enable the defendant successfully to resist the plaintiff’s claim, and the application must succeed.

[10] Summary judgment is granted for:

[10.1] Return of the Ford Bantam motor vehicle with engine number AL019055 and chassis number AFAWXXMJKWAB03105.

[10.2] Costs of the action including the costs of the application for summary judgment.

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J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant:  Adv K L Watt, instructed by Neville Borman & Botha Attorneys, Grahamstown

For the Respondent:  Mr G M Yeko, G M Yeko Attorneys, Grahamstown

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