Feldman v Migdin NO (194/05) [2006] ZASCA 63; 2006 (6) SA 12 (SCA) (26 May 2006)

Feldman v Migdin NO (194/05) [2006] ZASCA 63; 2006 (6) SA 12 (SCA) (26 May 2006)

The Supreme Court of Appeal held that 'money' in section 46 of the Administration of Estates Act does not include cheques. The appellant, acting as executor, received the R150 000 on behalf of Hanfried Investments CC, not for the estate, and thus was not obliged to deposit it into the estate's bank account under section 28. The cheques, although drawn in favour of the estate, were not 'money' for the purposes of section 46, and the estate suffered no loss as the amounts were ultimately recovered. The punitive provisions of section 46 do not apply to cheques, and the respondent failed to prove that the amounts in question were received 'for the estate.' Accordingly, the appeal succeeded...

Citation
[2006] ZASCA 63
Parties
Appellant: David Charles Feldman; Respondent: Jack Migdin NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 May 2006
Case Number
194/05
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal upheld; respondent's action dismissed with costs.
Judges
Scott, Streicher, Navsa, Mthiyane, Van Heerden
Legal Topics
Administration of Estates Act, Executor Liability, Interpretation of Statutes, Close Corporations Act
Administrative Law Civil Procedure Administration of Estates Act Executor Liability Interpretation of Statutes Close Corporations Act

Case Brief

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Parties

David Charles Feldman

Appellant

Jack Migdin NO

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Does 'money' in section 46 of the Administration of Estates Act 66 of 1965 include cheques?
  2. 2 Was the R150 000 received by the appellant 'for the estate' within the meaning of section 28 of the Act?
  3. 3 Is the appellant liable to pay double the amount not deposited into the estate's bank account under section 46?

Ratio Decidendi

The Supreme Court of Appeal held that 'money' in section 46 of the Administration of Estates Act does not include cheques. The appellant, acting as executor, received the R150 000 on behalf of Hanfried Investments CC, not for the estate, and thus was not obliged to deposit it into the estate's bank account under section 28. The cheques, although drawn in favour of the estate, were not 'money' for the purposes of section 46, and the estate suffered no loss as the amounts were ultimately recovered. The punitive provisions of section 46 do not apply to cheques, and the respondent failed to prove that the amounts in question were received 'for the estate.' Accordingly, the appeal succeeded...

Court Disposition

Appeal upheld; respondent's action dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the trial court is set aside and replaced with: 'The plaintiff's action is dismissed with costs.'