Moola v Estate Moola

• Jurisdiction: South Africa
• Judge: Broome JP and Holmes J
• Judgment Date: 25 April 1957
• Citation: 1957 (2) SA 463 (N)
• Hearing Date: 16 April 1957
• Court: Natal Provincial Division

E Broome, J.P.:

Plaintiff in his declaration alleges that he is a beneficiary of a testamentary trust of which defendants are the administrators. He claims from defendants an account, supported by vouchers, of their administration and a debate of the account. F Defendants plead that plaintiff had ceded to a third party, as security for a debt which is still unpaid, all his right, title and interest in and to his inheritance in the estate. Plaintiff excepts to this plea on a number of grounds which Mr. Niehaus, in his argument for the excipient, has combined in a single proposition: on the facts alleged in the pleadings, the existence of the cession is no defence to the claim G for an account. Mr. Leon, in support of the plea, claims that it is.

The material part of the cession reads as follows:

'. . . I agree to pledge and do hereby pledge my interest in the estate . . . and I hereby authorise the administrators to hold my interest and share of profits accrued from the estates'

(the cession related to other estates as well)

'for and on behalf of 'the third party H ' as security for payment of the said amount owing by me . . .'

The enquiry thus concerns the extent of the rights remaining with the cedent during the currency of a cession in securitatem debiti, a matter upon which there is very little authority. In the case of an out-and-out cession the position is clear: no right whatever remains

Broome JP

in the cedent. Thus in Moodley v Estate Moodley and Others, 1953 (3) SA 860 (N), this Court held that a beneficiary who had made an out-and-out cession of his interests as a beneficiary in the estate could not sue the administrators for an account. That decision was based A upon Rothschild v Lowndes, 1908 T.S. 493, but in so far as the latter case relates to a cession in securitatem debiti it must be taken to have been qualified by National Bank v Cohen's Trustee, 1911 AD 235. The law is now settled that a cession in securitatem debiti leaves the dominium in the cedent. So we may take it that in the present case B plaintiff is still the 'owner' of the rights which he has ceded, viz. his rights as a beneficiary. The estate is now in the hands of administrators and plaintiff's interest is that of a residuary legatee. It follows that his rights as a beneficiary are no more than rights of action against the administrators. The word 'dominium' is therefore out of place, and it does not help much to describe plaintiff as...