Lindsay and Others v Stofberg NO

• Jurisdiction: South Africa
• Judge: Van den Heever J and Van Schalkwyk AJ
• Judgment Date: 02 September 1987
• Citation: 1988 (2) SA 462 (C)
• Hearing Date: 31 August 1987
• Court: Cape Provincial Division

Van Schalkwyk AJ:

The plaintiff in this action claims damages and the repayment of certain moneys from the defendants. The defendants have excepted to the claim for damages on the ground that the plaintiff's particulars of claim in regard thereto lack the averments which are necessary to sustain a cause of action.

J The relevant paragraphs of the plaintiff's particulars of claim set out the claim for damages in the following terms:

Van Schalkwyk AJ

'6.

A During 1985, first, second and third defendants practiced in partnership with one David Foreman Myers under the name and style of Myers, Lindsay, Schneider & Kawalsky (hereinafter referred to as "the prior partnership").

7.

The business of the prior partnership comprised, inter alia, the acceptance of appointments as executors or the administration of B estates by partners for the benefit of the partnership.

8.

Myers was at all relevant times authorised by the partnership to accept such appointments and to perform such work for the benefit of the partnership.

9.

During this period, Myers occupied the position of executor in the said estate of the late Carlo Vittorio Ambrosio, having been C duly appointed as such by letters of executorship issued by the Master of this honourable Court on 11 January 1984.

10.

During 1985, Myers:

10.1

unlawfully and intentionally stole from the estate moneys in D the total sum of R74 250; alternatively,

10.2(a)

unlawfully and intentionally stole from the estate moneys in the sum of R58 250; and

(b)

in breach of his duties as executor, paid one M Z Burger, never a creditor of the estate, but a creditor of the prior partnership or Myers, the sum E of R10 000 from funds of the estate;

(c)

in breach of his duties as executor, paid one G Phillips? never a creditor of the estate, but a creditor of the prior partnership or Myers, the sum of R6 000 from funds of the estate; alternatively or in any event

(d)

performed his functions as executor of F the estate negligently and/or without due care or diligence.

11.

Myers acted as aforesaid in the course and scope of the business of the prior partnership; alternatively, or in any event, in the course of the performance of work which he was authorised to do G for the benefit of the prior partnership.

12.

In consequence of Myers' actions aforesaid, the estate sustained loss or damage in the sum of R74 250.

13.

The prior partnership was subsequently dissolved.

14.

Myers was subsequently removed from the position of executor in the estate by the Master of this honourable Court and plaintiff H was appointed as executor as aforesaid.

15.

In the premises, first, second and third defendants became jointly and severally liable to plaintiff, in his said capacity, in the sum of R74 250.

16.

I Notwithstanding demand, first, second and third defendants have neglected to pay the said sum or any part thereof.'

The defendants' exception contains the following averments:

'2.1

that as plaintiff's claim is based upon a breach of a personal fiduciary duty, no such vicarious liability arises in law; and in J any event,

Van Schalkwyk AJ

2.2

A as appointments of executors are personal to the appointee, as a matter of law, it cannot be said that the business of the prior partnership comprised, inter alia, of the acceptance of such appointments.'

B The essential elements of the plaintiff's claim may be summarised as follows:

1.

At all material times, the defendants and one Myers were partners.

2.

The business of the partnership comprised, inter alia, the acceptance by the partners of appointments as executors in deceased estates for the benefit of the partnership.

3.

C Myers was authorised by the partnership to accept such appointments and to perform the work of an executor for the benefit of the partnership.

4.

While acting as executor in the estate of the late Carlo Vittorio D Ambrosio, Myers intentionally and/or in breach of his duties as executor and/or negligently caused the estate to suffer damages in the sum of R74 250.

5.

Myers acted as aforesaid in the course and scope of the business of the partnership, alternatively in the course of the performance of work which he was authorised to do for the benefit of the partnership.

6.

E The defendants are in the premises jointly and severally liable in respect of the aforementioned damages.

The essential question to be determined is whether, upon the basis of the facts alleged, the defendants can in law be held to be vicariously liable for the damage allegedly caused by their erstwhile partner. The F exception is based on two contentions:

(a)

Damage caused by an executor in the circumstances alleged by the plaintiff constitutes a breach of a personal fiduciary duty which cannot in law give rise to vicarious liability.

(b)

The fiduciary duty of an executor is of a personal nature and cannot therefore form part of a...