Strydom NO. v Kruger and Another

• Jurisdiction: South Africa
• Judge: PL Nobanda AJ
• Judgment Date: 21 January 2022
• Court: Northern Cape Division
• Hearing Date: 15 October 2021
• Docket Number: 872/2005

Nobanda AJ:

Introduction :

[1]

The applicant is the executrix in the deceased estate of the late Roberto Nel (the deceased) applying for the rescission of the Writ of Execution (the Writ) issued

2022 JDR 0099 p2

Nobanda AJ

against the deceased estate on 17 April 2021 for payment of arrear maintenance of the deceased's then minor child (M[....]). The applicant further seeks an order interdicting the first respondent from taking any further steps in relation to the execution against the deceased estate until such time as the liquidation and distribution account has been drawn up, completed and approved by the second respondent. No order is sought against the second respondent.

Background facts:

[2]

The deceased and the first respondent were divorced on 29 June 2005. A divorce incorporating the settlement agreement between the parties was granted by the Court. Clause 3 of the settlement agreement dealt with the maintenance of M[....]. To that end, clause 3 as translated provided:

"3.1. The Defendant undertakes to pay the amount of R500.00 per month to the Plaintiff for the maintenance of the minor child and to make/effect the first payment on or before the first day of every month. The maintenance amount shall yearly escalate at a rate equivalent to the Consumer Price Index with the first escalation on 1 November 2005.

3.2 The Defendant shall further be responsible for 2/3 of all school expenses/liabilities of the minor child.

3.3 The Defendant shall retain the minor child on his hospital plan for major medical expenses and all other medical expenses shall, equally, be paid by the Plaintiff and Defendant."

[3]

The deceased passed away on 7 May 2014. Upon his death, the first respondent lodged a claim of arrear maintenance on behalf of M[....] against the deceased estate. The applicant rejected the claim. Subsequently, the applicant applied for a declaratory order [1] confirming that decision. In the alternative, the applicant sought the quantum of the claim to be determined. The first respondent opposed the application and brought a counter-application, seeking an order

2022 JDR 0099 p3

Nobanda AJ

compelling the applicant to accept the claim with adjustments, alternatively, for the court to determine the amount of the claim.

[4]

After much deliberation on the issues not relevant to this application, Lever AJ held that the arrear maintenance of M[....] must be paid out by the deceased estate on the basis set out in prayer 3 of the divorce order and the associated deed of settlement. To that end, Lever AJ granted the order on 4 December 2020 in the following terms:

"1) The first respondent can recover arrear maintenance from the applicant in her position as executrix of the estate of the late Roberto Nel.

2) That such arrear maintenance is to be calculated in accordance with prayer 3 of the court order issued on the 29 June 2005 under case number 872/05…

3) That where appropriate such claims for arrear maintenance will be supported by appropriate documentary proof relating to such claim/s.

4) …"

[5]

Subsequent thereto, numerous correspondence was exchanged between the parties' attorneys wherein documents and calculations to support first respondent's claim were submitted. The applicant's attorney sought proof in respect of school fees paid by the first respondent prior to the deceased estate reimbursing her for those expenses.

[6]

Following extensive negotiations between the parties' attorneys and on 16 March 2020 the applicant refused to pay the first respondent's claim, reiterating that the estate requires proof of arrear maintenance as well as expenses incurred by the first respondent in the form of vouchers and proof of payment.

[7]

As a result, on 7 April 2021, the first respondent applied for a Writ of Execution (the Writ) in the amount of R183,950.79 against the deceased estate for M[....]'s general arrear maintenance and school fees. The Writ was served on the

2022 JDR 0099 p4

Nobanda AJ

applicant's attorneys on 28 April 2021. The Writ amount was subsequently amended to R172, 517.08 on 11 May 2021 after the first respondent filed an affidavit reducing the general arrear maintenance calculations after M[....] attained the age of majority in 2020. The Writ led to the present application.

Applicable legal principles:

[8]

The general principle is that a court will set aside a Writ of Execution if:

(i)

the writ does not conform with the judgement which warrants its issue;

(ii)

the judgement is not definite and certain;

(iii)

the causa for the judgement has fallen away. [2]

[9]

The applicant's grounds for the setting aside of the Writ can be summarised as follows:

9.1 there is no proper quantification and proof provided by the first respondent for the claim;

9.2 there is a dispute as to the calculation or quantification of the amounts claimed;

9.3 the liquidation and distribution account has not been duly considered and approved by the second respondent.

9.4 the actuary has not been appointed for a proper quantification of the claim by the first respondent.

[10]

During argument, Counsel for the applicant Mr Olivier abandoned the applicant's heads of argument. Mr Olivier conceded that the ground raised by the applicant that she is unable to pay arrear maintenance until the liquidation and distribution account has been approved by the second respondent is unfounded in law. Similarly, Mr Olivier conceded that the general arrear maintenance claimed in

2022 JDR 0099 p5

Nobanda AJ

the Writ as amended was payable and was actually paid by the applicant. What the applicant is disputing is the claim for school expenses claimed by the first respondent.

[11]

Mr Olivier contended that in terms of Lever AJ's Order, not only should the first respondent provide documentary proof of those expenses but also, proof that she 'personally' paid the amounts claimed in order to be 'reimbursed' for those "out of pocket" expenses. Mr Olivier relied on the cases of Africa [3] and Butchart [4] for his contention. He argued that it is not disputed that M[....] attended those schools for which the documentary proof was submitted by the first respondent. However the documentary proof was not sufficient evidence. The first respondent has to first prove that she 'personally' paid those amounts to be reimbursed the 66.6% of the amounts paid in accordance with the divorce court order.

[12]

Mr Van Niekerk SC on behalf of the first respondent disputed the applicant's contention on the basis that nowhere in Lever AJ's judgment is it stated that the first respondent has to prove that she personally paid the school expenses neither do any of the two cases relied upon by the applicant's counsel require such.

[13]

Mr Van Niekerk argued that Order 3 of Lever AJ's judgment only requires documentary proof relating to such claims to be provided and the first respondent has provided such proof when obtaining the Writ. That, in any event, the first respondent had indicated in a letter to the applicant's attorneys attached to her answering affidavit that the payment was made by her erstwhile husband, as a loan to her. Furthermore, that although initially the applicant was disputing the first respondent's claim as a whole, the applicant subsequently relented and eventually paid part of the amount claimed in the Writ, to wit...