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THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 15/05/2008

Case No: 4107/2008

UNREPORTABLE

In the matter between:

STANDARD BANK OF SA LTD APPLICANT

And

JOHANNES JACOBUS THEODORUS

OOSTHUIZEN N.O THE EXECUTOR IN THE

ESTATE LATE EBENHAEZER VERMAAS

IDENTITY NUMBER: 521021 5018 086 RESPONDENT

JUDGMENT

MAKHAFOLA, AJ

INTRODUCTIONS:

1 On 23 January 2008 the plaintiff issued summons under case no: 4107/08 against the defendant for the following prayers:

(1) Payment of the amount of R454,240.55;

(2) Interest on the amount claimed calculated at the rate of 13.30 % per annum from 17 October 2007 to date of final payment;

(3) An order declaring the said property executable and directing that it may be sold in terms of Section 30 (b) of the Administration of Deceased Estates Act 66 of 1965 for the said sums as contemplated by the provisions of Section 26 (3) of the Constitution of the Republic of South Africa, Act 108 of 1996, the facts relied upon by the Plaintiff, which facts appear from prayer 1 above, entitling the Plaintiff to the order sought;

(4) Attorney and client costs as provided for in terms of the said mortgage bond;

(5) Further and/or alternative relief.

2 The defendant who is an executor in the Estate Late Ebenhaezer Vermaas is sued in his official capacity as an executor. He entered notice to defend by filing the said notice on 6 February 2008 with the Plaintiff's Attorneys.

3 The Plaintiff launched an application for Summary Judgement on 20 February 2008 on the basis that the defendant has no bona fide defence premised on the same prayers as those which are in the summons. The Summary Judgement is vehemently opposed by the Defendant who had raised several points to ground a bona fide defence.

COMMON CAUSE FACTS:

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(a) It is common cause that the deceased is indebted to the Plaintiff in terms of the mortgage bond;

(b) that the Debtor is deceased;

(c) that now the deceased estate is indebted to the Plaintiff;

(d) that the Plaintiff's claim against the Deceased estate is valid;

(e) that the National Credit Act 34 of 2005 is applicable;

(f) that in terms of Section 35 (a) of Act 66 of 1965 the executor has 6 months to lodge a liquidation and distribution account;

(g) that the executor gave notice in terms of Section 34 and had asked all secured creditors to place a value on their security by 7 April 2008.

ISSUES IN DISPUTE:

5 The executor avers the following:

(a) The Applicant has failed to comply with Sections 127, 129 and 130 of Act 34 of 2005;

(b) The Executor is busy with the procedure as set out in Secti0i1 35 of the Administration of Estates Act 66 of 1965;

(c) Alternatively, whether Section 130 (4) (b) of Act 34 of 2005 together with Sections 79 and 85 thereof are applicable.

6 Section 79 refers to a consumer which the executor in this case is not. The definition of a consumer in the Act does not include an executor acting in his official capacity or a deceased estate.

Vide: Section 1 Act 34 of 2005

7 For the application of Section 85 the court has to consider an allegation that the consumer is over-indebted. This would involve referring the matter to a debt­ counsellor. All these factors are not at play in the circumstances of this case.

8 The apposing Affidavit by the executor at paragraph 7 thereof refers to Section 35 of Act 66 of 1965 and that he has six months to issue a Liquidation and Distribution account to the Master. That is the requirement of the Act. But that Section is not couched in terms that oust the Plaintiff from applying for and benefiting from Summary Judgment.

9 The Insolvent deceased estate referred to in Section 34 of the Administration of the Deceased Estates Act can not be of applicability because the notice given to the secured creditors by the executor had not expired at the giving of notice.

10 Section 86 of the Act relates to debt review which is not applicable because the credit provider has proceeded to take steps under Section 129.

11 In terms of Section 130 (1) - (2) of the Act the Consumer must have been in default under the credit agreement for at least 20 business days and at least 10 business days must have elapsed since the credit provider had given a notice to the consumer contemplated in Section 86 (9) or 129 (1) as the case may be. But in this case the notice was given to a deceased person.

12 On the other side of the coin it is clear from the documents attached to the application by both the Applicant and the Respondent that:

(a) Summons was first issued in the Witwatersrand Local Division on 29 March 2007 under case no: 7236/2007 Annexure "R1" attached to the opposing papers.

(b) A letter dated 23/4/2007 from De Kocks Incorporated to Monte Coetzer Ing in reply to a letter dated 19 April 2007 intimates the death of Vermaas, whose deceased estate is represented by the executor, as depicted by Annexure "R2" attached to the opposing papers.

(c) Notice in terms of Section 129 read together with Sections 130 of the National Credit Act 34 of 2005 dated 30 October 2007 was sent by registered post to the deceased through: PO Box 871, Stillfontein 2500 by Findlay & Niemeyer Inc. This is found on paginated pages 18-19 of the Applicant's papers.

(d) The Summons to which this Summary Judgment relates was issued in this Court on 19 November 2007 under case number 53797/2007 against the Executor of the Deceased's Estate: Wyle Ebenhaezer Vermaas and it is attached to the opposing papers as Annexure "R5".

(e) Section 30 of Act 66 of 1965 puts a restriction on the sale in execution of property in deceased estates. This section uses the word shall which is peremptory than directory and it is couched in the negative language.

13 It was argued on behalf of the applicant that there is nothing in the Administration of the Deceased Estate Act that prevents the Plaintiff from taking Summary Judgment.

14 The Respondent argued that the Court should not deviate from the provisions of Section 30 of the Administration of the Deceased Act.

15 From the common cause factors above it is clear that the Plaintiff's claim is undisputed. In McNicol v Delport NO 1980 (4) SA 287 (W) it was held that an institution of an action in respect of an undisputed claim before the account is accepted by the master is premature.

16 In De Faria v Sheriff, High Court, Witbank 2005 (3) SA 372 (TPD) at page 376 paragraph (21) the learned Judge stated the following: "The purpose of Section 30 of the Act, read in the context of the Act as a whole, is clearly to prevent certain creditors from being preferred above others. This is achieved by preventing one creditor who has obtained judgment against the Deceased's Estate from obtaining satisfaction of his claim by selling property in the Deceased's Estate in execution, leaving nothing for the other creditors...".

17 In W.M. MENTZ & SEUNS (EDMS.) BPK V KA TZAKE [1969 (3)] SA 306 (TPD) it was stated that to give effect to purely technical defences in an application for summary judgment would frustrate the purpose of Rule 32 of the Rules of the Supreme Court.

18 It is clear that the required notice in terms of Sections 129 read with S130 of Act 34 of 2005 the credit provider is to give notice to the consumer before any debt enforcement steps can be taken. As I have already stated above the Plaintiff did comply with the relevant Sections by giving a notice.

19 But the said notice is defective in that it was sent to a dead man by registered post. At the time the notice was issued and sent to the deceased by the credit provider its legal representatives had the knowledge that the consumer was deceased. "Dead men tell no tales". There is no way in which the deceased could have complied within the 10 business days of the notice. There was an impossibility of performance because the deceaseds do not respond to notices.

20 Therefore, the notice to the consumer who was dead at the time is nu!! and void ab initio in the context of the letter and spirit of that Section of the National Credit Act, in the circumstances of this case.

21. When the second summons was issued by the Plaintiff, no reliance on the notice in terms of Sections 129 and 130 of Act 34 of 2005 should have been made because at that time already it was known that there was no living consumer. That portion of the Summons that refers the said notice having been provided to the Defendant is misleading.

22 There cannot be a valid argument in summary judgment application on the facts of this case to say that a notice to defend was entered for the purposes of delay and that there is no bona fide defence. The defective notice purportedly given to the deceased (consumer) is a bona fide defence as correctly argued on behalf of the respondent.

23 Section 30 of Act 66 of 1965 is also arguable in favour of the Respondent. In the circumstances where the court should decide not to deviate from its application then that would be one of the aspects to be considered against the granting of summary judgment.

24 The above having been said I find as follows:

(a) That to grant Summary Judgment would defeat the intention of Section 30 of Act 66 of 1965;

(b) that the issuing of Summons in respect of an undisputed claim against the creditor before the account is accepted by the Master is premature;

(c) that the notice in terms of Sections 129 and 130 of Act 34 of 2005 to the consumer who is deceased is defective and does not qualify as a required procedure before debt enforcement;

(d) that the opposition against the granting of summary judgment has merit;

(e) that the respondent has raised a bona fide defence.

ORDER:

25. In the result, Summary Judgment is dismissed with costs.

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