Fairleigh NO v Whitehead and Another (541/98) [2000] ZASCA 56; 2001 (2) SA 1197 (SCA) (29 September 2000)

Fairleigh NO v Whitehead and Another (541/98) [2000] ZASCA 56; 2001 (2) SA 1197 (SCA) (29 September 2000)

The Supreme Court of Appeal held that section 44(2) of the Insurance Act does not operate automatically upon the cession or effecting of a life policy in favour of a wife, but only if and when a creditor attaches the policy in execution of a judgment debt. Ownership remains with the wife until such attachment. No attachment occurred before 27 April 1994, when the interim Constitution came into force and the Constitutional Court declared section 44 invalid. The executor did not acquire any vested right to the proceeds before the invalidity took effect. The informal insolvency procedure under section 34 of the Administration of Estates Act constitutes sequestration for purposes of section...

Citation
[2000] ZASCA 56
Parties
Appellant: A R Fairleigh NO; Respondent: M Whitehead; Respondent: The Master of the Supreme Court
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2000
Case Number
541/98
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal dismissed with costs.
Judges
Hefer, Smalberger, Olivier, Schutz, Mthiyane
Legal Topics
Insurance Act Section 44, Administration of Deceased Estates, Constitutional Invalidity, Concursus Creditorum, Retrospective Effect of Invalidity
Civil Procedure Commercial and Corporate Insurance Act Section 44 Administration of Deceased Estates Constitutional Invalidity Concursus Creditorum Retrospective Effect of Invalidity

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Parties

A R Fairleigh NO

Appellant

M Whitehead

Respondent

The Master of the Supreme Court

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the deeming provision in section 44(2) of the Insurance Act 27 of 1943 operated in respect of certain life policies before 27 April 1994.
  2. 2 Whether the proceeds of the policies vested in the deceased's estate before the interim Constitution came into force.
  3. 3 Whether the informal procedure under section 34 of the Administration of Estates Act constitutes 'sequestration' for purposes of section 44.

Ratio Decidendi

The Supreme Court of Appeal held that section 44(2) of the Insurance Act does not operate automatically upon the cession or effecting of a life policy in favour of a wife, but only if and when a creditor attaches the policy in execution of a judgment debt. Ownership remains with the wife until such attachment. No attachment occurred before 27 April 1994, when the interim Constitution came into force and the Constitutional Court declared section 44 invalid. The executor did not acquire any vested right to the proceeds before the invalidity took effect. The informal insolvency procedure under section 34 of the Administration of Estates Act constitutes sequestration for purposes of section...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.