Banderker NO and Others v Gangrakar NO and Others

• Jurisdiction: South Africa
• Citation: 2008 (4) SA 269 (C)

Banderker NO and Others v Gangrakar NO and Others
2008 (4) SA 269 (C)

2008 (4) SA p269

Citation	2008 (4) SA 269 (C)
Case No	A359/06
Court	Cape Provincial Division
Judge	NC Erasmus J, Veldhuizen J and Zondi J
Heard	January 25, 2008
Judgment	February 22, 2008
Counsel	DA Uijs SC (with MS Banderker) for the appellants.; A Smalberger for the respondents.

Flynote : Sleutelwoorde B

Prescription — Extinctive prescription — Interruption — Claim against deceased estate — Beneficiary also executor — Prescription of claim by beneficiary against deceased estate interrupted while this situation obtains — Prescription C Act 18 of 1943, s 7(1)(a).

Prescription — Extinctive prescription — Interruption — Claim against deceased estate — Absence of executor — Situation constituting case in which performance of obligation delayed by vis major or debtor lawfully entitled to delay performance — Prescription Act 18 of 1943, s 7(1)(a). D

Headnote : Kopnota

The running of prescription of a claim by a beneficiary against a deceased estate is interrupted for so long as the claimant is also the executor. (Paragraph [32] at 276A - C.)

In terms of s 7(1)(a) of the Prescription Act 18 of 1943, the running of prescription is interrupted for 'so long as performance of an obligation is delayed by vis major or the debtor is lawfully entitled to delay performance E on any other ground'. In respect of a claim by a beneficiary against a deceased estate, that includes any period for which the estate has no executor. (Paragraph [32] at 276A.)

Cases Considered

Annotations F

Reported cases

Southern African cases

Desai NO v Desai and Others 1996 (1) SA 141 (A): referred to

Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd G 1981 (3) SA 340 (A): referred to

Louw v Louw and Others 1933 CPD 163: dictum at 168 applied.

Foreign cases

Binns v Nichols (1886) LR 2 Eq 256: applied

In re Blachford (Blachford v Worsley) (1884) 27 ChD 676: referred to H

In re Pardoe (McLaughlin v Penny) [1906] 1 Ch 265: referred to

In re Welch (Mitchell v Willders) [1916] 1 Ch 375: referred to.

Statutes Considered

Statutes

The Prescription Act 18 of 1943, ss 3(2) and 7(1)(a): see Juta's Statutes of South Africa 2006/7 vol 1 at 1-794. I

Case Information

Appeal against a decision of a single Judge in the same division (Motala J). The facts appear from the reasons for judgment.

DA Uijs SC (with MS Banderker) for the appellants.

A Smalberger for the respondents. J

2008 (4) SA p270

Cur adv vult. A

Postea (February 22).

Judgment

Zondi J:

Introduction B

[1] In the Court a quo the respondents brought an application in which they sought an order, inter alia:

1.

Setting aside the refusal by the master to sustain objections by the respondents to the amended liquidation and distribution account in the estate of the late Jameela Omar Dawood filed by the first and C second appellants.

2.

Directing the first and second appellants to effect transfer to the third respondent of the 25% interest in Erven 988 and 1021 Simon's Town in the name of Jameela Omar Dawood.

D [2] In terms of his last will and testament dated 7 October 1942, the late Omar Dawood, appointed his children as 'the sole and universal heirs in equal shares of all' of his estate. He had four children, namely Dawood Omar Dawood, Sulaiman, Jameela and Kulsum. The estate of Omar Dawood comprised mainly the remaining extent of the property called E 'Constantia', known as Erf 988, Simon's Town, situate at 130 St George's Street, Simon's Town, and Portion 1, Portion of Lot, known as Erf 1021 Simon's Town, situate at 128 St George's Street, Simon's Town. These erven were duly registered in equal undivided shares in the names of the late Omar Dawood's four children and they remain so F registered.

[3] Jameela died on 6 December 1964 and was survived by her minor daughters Jubeida, born on 10 July 1950, and Fatima, born on 20 April 1956, who are the appellants in the present appeal. In her will dated 26 March 1954, Jameela appointed Jubeida and Fatima as her heiresses G and Sulaiman as their guardian and the executor of her estate. She gave Sulaiman the right at any time, within three years of her death, to purchase any immovable property she might have at the municipal valuation thereof.

[4] Sulaiman was duly appointed as the executor of Jameela's estate on H 1 February 1965. As an executor of Jameela's estate Sulaiman duly filed a liquidation and distribution account dated 22 May 1967.

[5] In the account, the following statement appears:

In terms of the Will of the deceased the brother Sulaiman Omar I Dawood is given the right to purchase and the said Sulaiman Omar Dawood has now exercised this right and will purchase the within immovable properties for the amounts disclosed, namely at a quarter of the municipal valuation.

He also annexed a document to the liquidation and distribution account J which reads:

2008 (4) SA p271

Zondi J

I, the undersigned, Sulaiman Omar Dawood hereby exercise the option A granted me by my sister the late JO Dawood, as set out in clause three of her Will dated the 26 March 1954.

[6] The only asset in the account was Jameela's 25% undivided share in the two erven and this is what Sulaiman awarded to himself. Sulaiman B Zondi Jdid not take transfer of the said share as the properties were situated in an area which had been proclaimed a white group area. His attorneys then wrote to the Master suggesting that the 25% undivided share remain registered in the name of the estate and that the matter be kept in abeyance. The Master appeared to have accepted the suggestion and in the circumstances Jameela's estate was not finally wound up. C

[7] Perhaps it is more apposite at this stage to deal briefly with the provisions of the Group Areas Act 36 of 1966 and how they affected the rights of the beneficiaries to acquire their respective interest in the relevant immovable properties.

[8] The Group Areas Act 1 of 1950 repealed several portions of statutes D which had imposed restrictions on ownership or occupation of land by members of certain race groups. The Group Areas Act 41 of 1950 and amendments to that Act were repealed by the Group Areas Act 77 of 1957 which itself was repealed by the Group Areas Act 36 of 1966.

[9] In terms of the...