Keyter NO v Van der Meulen and Another NNO

• Jurisdiction: South Africa
• Citation: 2014 (5) SA 215 (ECG)

Keyter NO v Van der Meulen and Another NNO
2014 (5) SA 215 (ECG)

2014 (5) SA p215

Citation	2014 (5) SA 215 (ECG)
Case No	2906/2013
Court	Eastern Cape Division, Grahamstown
Judge	Plasket J
Heard	April 17, 2014
Judgment	May 6, 2014
Counsel	G Dugmore for the applicant.; D de la Harpe for the second respondent.

Flynote : Sleutelwoorde B

Administration of estates — Executor — Rights, powers and duties — Cession — Executor may cede rights of estate to third parties.

Headnote : Kopnota

An executor of a deceased estate may cede a right of the estate to a third party. C (Paragraph [38] at 224A.)

Cases Considered

Annotations

Case law

Elizabeth Nursing Home (Pty) Ltd v Cohen and Another 1966 (4) SA 506 (D): D followed

Geldenhuys v Kotzé 1964 (2) SA 167 (O): referred to

Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T): dicta at 138 – 139 applied

Lockhat's Estate v North British & Mercantile Insurance Co Ltd 1959 (3) SA 295 (A): referred to E

Lourensford Estates (Edms) Bpk v Grobbelaar 1996 (3) SA 350 (O): referred to

Naylor and Another v Jansen 2007 (1) SA 16 (SCA): referred to

Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) ([2001] 4 All SA 315): referred to

Ntshiqa v Andreas Supermarket (Pty) Ltd 1997 (1) SA 184 (TkS): referred to F

Socratous v Grindstone Investments 2011 (6) SA 325 (SCA): dictum in para [16] applied

South African Board of Executors and Trust Co Ltd (in Liquidation) v Gluckman 1967 (1) SA 534 (A): dictum at 541F – H distinguished

Van As v Appollus en Andere 1993 (1) SA 606 (C): referred to.

Case Information

G Dugmore for the applicant. G

D de la Harpe for the second respondent.

An application for delivery of a flock of sheep. The order is in para [43].

Judgment

Plasket J: H

[1] This case concerns the fate of a flock of sheep. The dispute concerning the flock has raged for so long now that both the parties and the sheep have changed: the parties, as well as another person who plays a part in this matter, are executors of deceased estates, two of the original protagonists having died; and the flock in issue is made up of different I sheep, old age, sale and slaughter having taken their inevitable toll.

[2] The applicant (Keyter) is the executor of the estate of the late EWD Keevy. One Paterson, who is not a party to these proceedings, is the executor of the estate of the late HA Keevy. The second respondent (Potgieter) is the executor of the estate of the late JMDD Keevy. J

2014 (5) SA p216

Plasket J

A [3] In terms of the will of EWD Keevy, a usufruct was granted to his wife, HA Keevy, in respect of, inter alia, the flock of sheep that is the subject-matter of this application. After she had taken possession of the sheep following the death of her husband, she entered into an agreement with Neville William Keevy in terms of which the sheep were leased to B him. The agreement provided for the lease to terminate on her death and imposed an obligation on him to 're-deliver to the Administrators in Estate Late EWD Keevy livestock of equal number and value as received at the commencement of this Lease . . . .'

[4] HA Keevy died on 29 June 2003. JMDD Keevy took possession of C the sheep in, it would appear, his capacity as executor of her estate. He died on 28 March 2008 and Potgieter and Ms Marian van der Meulen (cited as the first respondent in this matter) were appointed executors of his estate. Van der Meulen has subsequently resigned as an executor and plays no part in this matter. On the death of JMDD Keevy, Paterson was appointed as executor to the estate of HA Keevy.

D [5] On 4 May 2011 Potgieter, through his attorney, tendered to 'furnish' the sheep to Paterson. He did so in answer to a letter from Paterson in which he had asked for confirmation that the sheep could be collected. Potgieter's attorney's letter states, after referring to a dispute concerning the sheep:

E 'Those small stock as disclosed must be made available to estate HA Keevy as once the litigation has been finalised or settled, you will have to deal with them in a final account. Whenever you require the small stock as listed please call upon us, representing estate JMDD Keevy, to furnish such stock to you giving that estate a reasonable opportunity to produce the listed small stock.'

F [6] Although there were subsequent discussions between Potgieter and Paterson concerning the value of the sheep being paid, instead of them being handed over to Paterson, it is apparent that the tender of the return of the sheep had been accepted and the further discussions were unsuccessful attempts to vary its terms.

G [7] On 24 January 2013 Paterson ceded to Keyter 'the right, title and interest the above-named estate has in and to' the sheep. On 6 February 2013 Keyter wrote to Potgieter's attorneys. He said:

'Mr Meyer has, on behalf of the Executor, Mr Potgieter, tendered delivery of the sheep referred to in the Particulars of Claim. This tender H was repeated by your Counsel during argument of the joinder of the Estate.

Mr Meyer has however indicated that the tender was made to the Executor of the Estate Late HA Keevy, Mr Paterson, and not to the writer in his capacity as Executor in the Estate Late EWD I Keevy.

Mr Meyer indicated however that the sheep would be delivered on receipt of a cession by Mr Paterson NO in favour of the writer.

The cession is attached.

We require the sheep as listed in the cession to be available for J inspection within ten days from date of receipt of this letter.

2014 (5) SA p217

Plasket J

. . . A

We require transport to be available to deliver the sheep to Keeviston immediately after the inspection. Transport costs to be for your client's account.'

[8] The reference in the letter to particulars of claim is a reference to an B action that Keyter instituted against NW Keevy and JMDD Keevy (in his capacity as executor of the estate of HA Keevy). Paterson was substituted as second defendant, and Van der Meulen and Potgieter were joined, in their capacity as executors of the estate of JMDD Keevy, as third defendant. That action was for the delivery of the sheep, alternatively the payment of R400 000, the rendering of an account in respect C of the progeny, and debatement of that account, payment of any amount established to be due, and costs.

[9] Three issues have been raised by Potgieter in opposition to the application. They are: that the application, in the light of the action, is D lis pendens; that the claim against Potgieter is, in any event, ill-founded in fact and in law; and that the cession upon which Keyter sues is invalid and he consequently lacks standing. I proceed to deal with these issues.

Lis alibi pendens E

[10] The defence of lis alibi pendens arises when four requirements are met. They are that: (a) there is litigation pending (b) between the same parties (c) based on the same cause of action and (d) in respect of the same subject-matter. [1] Lis alibi pendens does not, if successfully invoked, put an end to the plaintiff's or applicant's case. Rather, it allows for the F staying of the later matter pending the final determination of the earlier matter. [2] Once the earlier proceedings have been finalised, however, the later proceedings will be struck by, and terminated by, the defence of res judicata. In Nestlé (South Africa) (Pty) Ltd v Mars Inc [3] Nugent JA said the following: G

'The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before that H tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to be revived once it has been brought to its proper conclusion (res judicata). The same suit, between the same parties, should be brought only once and finally.'

2014 (5) SA p218

Plasket J

A [11] The court is vested with a discretion as to whether to stay proceedings or to hear the matter despite the earlier pending proceedings. In Loader v Dursot Bros (Pty) Ltd [4] Roper J dealt with this aspect when he said:

'It is clear on the authorities that a plea of lis alibi pendens does not have B the effect of an absolute bar to the proceedings in which the defence is raised. The Court intervenes to stay one or other of the proceedings, because...