Du Toit NO v Thomas NO and Others (635/15) [2016] ZASCA 94 (1 June 2016)

Du Toit NO v Thomas NO and Others (635/15) [2016] ZASCA 94 (1 June 2016)

The Supreme Court of Appeal held that the executor, having participated fully in the maintenance proceedings and not objected to jurisdiction at the hearing, was precluded from later challenging the maintenance court's jurisdiction. The court relied on established common law principles that a party who acquiesces...

Source-derived case information.

Citation
[2016] ZASCA 94
Parties
Appellant: Barend Jacobus Du Toit NO; Respondent: Errol Thomas NO; Respondent: Elsabe Vermeulen; Respondent: Jerome Josephs NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2016
Case Number
635/15
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court
Outcome
Appeal dismissed; costs awarded against the appellant de bonis propriis.
Judges
Ponnan, Majiedt, Mathopo, Fourie, Victor
Legal Topics
Maintenance of Minors, Jurisdiction of Maintenance Court, Executor Liability, Waiver of Jurisdiction, Costs De Bonis Propriis
Family and Children Civil Procedure Maintenance of Minors Jurisdiction of Maintenance Court Executor Liability Waiver of Jurisdiction Costs De Bonis Propriis

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Parties

Barend Jacobus Du Toit NO

Appellant

Errol Thomas NO

Respondent

Elsabe Vermeulen

Respondent

Jerome Josephs NO

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court

Legal Issues

  1. 1 Whether an executor who participated in maintenance proceedings without objecting to jurisdiction may later challenge the maintenance court's jurisdiction.
  2. 2 Whether the maintenance court has jurisdiction to order maintenance against a deceased estate's executor.
  3. 3 Whether costs should be awarded de bonis propriis against the executor for unconscionable conduct.

Ratio Decidendi

The Supreme Court of Appeal held that the executor, having participated fully in the maintenance proceedings and not objected to jurisdiction at the hearing, was precluded from later challenging the maintenance court's jurisdiction. The court relied on established common law principles that a party who acquiesces and joins issue without raising jurisdictional objections is deemed to have waived such objections. The maintenance court had jurisdiction over the maintenance claim against the executor, and the executor's subsequent technical challenge was rejected. The executor's conduct was found to be unconscionable, as he accepted the estate's maintenance obligation but insisted on a more...

Court Disposition

Appeal dismissed; costs awarded against the appellant de bonis propriis.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the second respondent's costs of the appeal de bonis propriis on the attorney and client scale.