Gravett NO v Van der Merwe

• Jurisdiction: South Africa
• Citation: 1996 (1) SA 531 (D)

Gravett NO v Van der Merwe
1996 (1) SA 531 (D)

1996 (1) SA p531

Citation	1996 (1) SA 531 (D)
Case No	9934/93
Court	Durban and Coast Local Division
Judge	Booysen J
Heard	March 22, 1995
Judgment	April 13, 1995
Counsel	R G Buchanan SC for the plaintiff.; K J Kemp for the defendant.

Flynote : Sleutelwoorde B

Principal and agent — Rights and liabilities of agent and third parties — Right of agent to sue in own name when claim that of principal — Plaintiff cannot sue in his own name on behalf of another — One cannot sue on behalf of either disclosed or undisclosed principal — Locus standi has to exist C at time of institution of action — There can be no ratification.

Administration of estates — Executor — Executor not ex officio nominee of deceased upon deceased's death — Therefore executor has no locus standi to act as nominee of deceased — Nominee indicates person who is specifically nominated or appointed in respect of a certain function — Executor's only D function to recover what was due to the deceased's estate — Executor not entitled to receive payment of moneys which deceased had allocated to a third party.

Headnote : Kopnota

The plaintiff, in his capacity as the executor of a deceased estate, sued E the defendant for the payment of moneys lent by the deceased to the defendant in terms of an oral agreement, certain terms of which had been reduced to writing in a letter, a copy of which was annexed to the particulars of claim. One of the terms in the letter was that in the event of the death of the deceased, the defendant would pay the amount tothe deceased's wife 'or to a nominee appointed by yourselves'. The defendant had raised a special plea to the effect that it had been an express term of the agreement between the parties that, in the event of the death of the deceased, the defendant would pay the amount to the F deceased's wife or to a nominee appointed by the deceased. It was pleaded that the plaintiff, suing in his capacity as executor in the estate of the deceased, had no locus standi as, ex facie the agreement on which he sued, the estate was not entitled to payment. In his replication the plaintiff had averred, firstly, that he was ex officio the nominee of the deceased upon the deceased's death and that he therefore had locus standi and, secondly, that in any event he had been appointed by the deceased's wife G to recover the capital sum and interest referred to in the particulars of claim from the defendant.

Held, as to the plaintiff's first claim to have locus standi, that there was no substance in the submission that the executor was ex officio the nominee for the deceased for the purposes of the agreement. The will in terms of which the executor had been appointed had been executed some 15 years prior to the loan; it was clear that the executor had never been H nominated ex officio for the purposes of the agreement. (At 536E-F.)

Held, further, that the term 'nominee' indicated a person who was specifically nominated or appointed in respect of a certain function. (At 536G/H.)

Held, further, that it was inconceivable that the deceased could have intended that his earlier nomination of the executor would take precedence over the clear indication to pay his wife. The whole purpose of the provision envisaged a different arrangement than that the money would I simply be repaid to his estate. (At 536I/J-537A).)

Held, further, that an executor's only function was to recover what was due to the deceased's estate; the fact that the beneficiary in terms of the stipulation here also happened to be an heir could not change the executor's basic function. (At 537A.)

Held, further, that the estate was not entitled to the money and had no right to payment where someone other than the estate was entitled thereto. An executor was not entitled to receive payment of moneys which the J deceased had allocated to a third

1996 (1) SA p532

A party. In casu the third party had not only accepted the benefit but the defendant had begun to perform in terms thereof and the third party had accepted the performance. (At 537B/C, 537D/E and 537E/F.)

Held, further, that the specific plaintiff had never been nominated by the deceased. The appointment of an executor was personal to the appointee. (At 537F.)

Held, further, as to the plaintiff's contention that he was also suing as the deceased's wife's agent, that it was trite law that a plaintiff could B not sue in his name on behalf of another; one could not sue on behalf of either a disclosed or an undisclosed principal. (At 537G.)

Held, however, that it was clear that that was not the basis on which the action had been brought; the particulars were clear, and if the executor had intended to act as agent for the deceased's wife that would have been alleged. Locus standi had to exist at the time of the institution of the action. The authority had to exist at the time that the act on behalf of C the undisclosed principal was performed and there could be no ratification. In casu no such authority existed and the plaintiff considered that he could sue in his capacity as executor. (At 537H, 537J and 538A.)

Held, accordingly, that the plaintiff had no locus standi in the matter and that the defendant had been successful in his defence in regard to all the points raised by him. (At 538F.) Action dismissed.

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

D Berman v Teiman1975 (1) SA 756 (W) at 757C

Botes NO v Afrikaanse Lewensversekeringsmaatskappy Bpk en 'n Ander1967 (3) SA 19 (W)

Ex parte Calderwood NO: In re Estate Wixley 1981 (3) SA 727 (Z)

Re Diplock; Wintle v Diplock[1941] Ch 253 ([1941] All ER 193)

Durity Alpha (Pty) Ltd v Vagg1991 (2) SA 840 (A)

Hughes v Rademeyer1947 (3) SA 133 (A) E

Lindsay and Others v Stofberg NO1988 (2) SA 462 (C) at 467C

Ex parte MacIntosh NO: In re Estate Barton1963 (3) SA 51 (N)

Sentrakoop Handelaars Bpk v Lourens and Another1991 (3) SA 540 (W)

Waikiwi Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd and Another1978 (1) SA 671 (A). F

Case Information

Civil trial in an action by the executor of an estate for the payment of an amount due under an agreement. The facts appear from the reasons for judgment.

R G Buchanan SC for the plaintiff.

K J Kemp for the defendant. G

Cur adv vult.

Postea (April 13).

Judgment

Booysen J:

The plaintiff in this action is suing in his capacity as the H executor in the estate of one Kenneth Lambole (hereinafter referred to as 'the deceased'). The plaintiff is employed by Standard Trust (Pty) Ltd. The deceased died on 16 April 1992, and the plaintiff was thereafter appointed executor in his estate. The defendant is a businessman who had been a friend of the deceased. In his particulars of claim the plaintiff alleged that the defendant and plaintiff had during June 1989 and at I Durban, entered into an oral agreement in terms whereof the deceased undertook to lend R200 000 to the defendant, which sum was in fact advanced on 3 July 1989. It was further alleged that certain terms of the oral agreement were reduced to writing in a letter dated 15 June 1989, addressed by the defendant to the deceased, a copy of which was annexed to J the particulars of claim. This letter read inter alia as follows:

1996 (1) SA p533

Booysen J

A 'I, J A Van der Merwe . . . hereby agree:

1.

To repay Mr K Lambole the amount of ± R275 000 being in...