Absa Bank Limited v White N.O and Another (M19/15) [2015] ZANWHC 57 (17 September 2015)

Absa Bank Limited v White N.O and Another (M19/15) [2015] ZANWHC 57 (17 September 2015)

The court held that the applicant is entitled to payment of the claimed sum and interest from the estate of the late Matthew Gilliand White, and that the mortgaged property may be declared specially executable and sold in execution under section 30 of the Administration of Estates Act 66 of 1965 due to the delay in...

Source-derived case information.

Citation
[2015] ZANWHC 57
Parties
Applicant: Absa Bank Limited; Respondent: Mathilda Cathleen White N.O.; Respondent: Matthew Charles Gilliand White N.O.
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 September 2015
Case Number
M19/15
Procedural Posture
Civil Application / First Instance
Outcome
Application granted. The draft order marked 'AAL' is made an order of court.
Judges
Landman
Legal Topics
Administration of Estates Act, Mortgage Bond Enforcement, Sale in Execution, Unopposed Application
Land and Property Civil Procedure Administration of Estates Act Mortgage Bond Enforcement Sale in Execution Unopposed Application

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Parties

Absa Bank Limited

Applicant

Mathilda Cathleen White N.O.

Respondent

Matthew Charles Gilliand White N.O.

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the applicant is entitled to payment of the claimed sum from the estate of the late Matthew Gilliand White.
  2. 2 Whether the applicant may proceed by litigation rather than lodging a claim with the executrix and executor.
  3. 3 Whether the immovable property may be declared specially executable and sold in execution under section 30 of the Administration of Estates Act.

Ratio Decidendi

The court held that the applicant is entitled to payment of the claimed sum and interest from the estate of the late Matthew Gilliand White, and that the mortgaged property may be declared specially executable and sold in execution under section 30 of the Administration of Estates Act 66 of 1965 due to the delay in finalizing the estate. The applicant is not obliged to lodge a claim with the executrix and executor and may resort to litigation, as confirmed by the Supreme Court of Appeal in Nedbank Ltd v Steyn. Costs are awarded on an attorney and client scale as stipulated in the mortgage bond.

Court Disposition

Application granted. The draft order marked 'AAL' is made an order of court.

Orders

  • The applicant is granted payment of R490,526.30 and interest from the estate of the late Matthew Gilliand White.
  • The immovable property serving as security for the loan is declared specially executable.