Kashe v Absa Bank and Others (EL260/2014, ECD560/2014) [2014] ZAECELLC 7 (16 September 2014)

Kashe v Absa Bank and Others (EL260/2014, ECD560/2014) [2014] ZAECELLC 7 (16 September 2014)

The court held that the sale in execution of the estate property was conducted in contravention of section 30 of the Administration of Estates Act 66 of 1965, as neither the executor nor the Master was notified or authorized the sale. The process of service was defective, as the writ was not served on the executor but merely affixed to the deceased’s former residence. The statutory provisions are peremptory, and disregard thereof renders the sale and subsequent actions null and void. Only the executor, with the Master’s approval, may sell estate property, and creditors must prove their claims in accordance with the Act. The actions of the first respondent and the Sheriff were declared...

Citation
[2014] ZAECELLC 7
Parties
Applicant: Bandile Kashe (Executor for the Estate Late W.M. M.); Respondent: Absa Bank; Respondent: The Sheriff of the High Court, East London; Respondent: Jescan Trading CC; Respondent: Nontsikelelo Ntombikayise Qomfo; Respondent: The Registrar of Deeds, King Williams Town; Respondent: The Master of the High Court, Grahamstown
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
16 September 2014
Case Number
EL 260/2014; ECD 560/2014
Procedural Posture
Urgent Application / Final Judgment on Application to Set Aside Sale in Execution and Related Relief.
Outcome
Application granted. Sale in execution set aside. Deed of transfer and mortgage bond cancelled. Costs awarded against first respondent.
Judges
P.W. Tshiki
Legal Topics
Administration of Estates Act, Sale in Execution, Notice to Executor, Deeds Registries Act, Service of Process, High Court Rule 46
Land and Property Civil Procedure Administration of Estates Act Sale in Execution Notice to Executor Deeds Registries Act Service of Process High Court Rule 46

Case Brief

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Parties

Bandile Kashe (Executor for the Estate Late W.M. M.)

Applicant

Absa Bank

Respondent

The Sheriff of the High Court, East London

Respondent

Jescan Trading CC

Respondent

Nontsikelelo Ntombikayise Qomfo

Respondent

The Registrar of Deeds, King Williams Town

Respondent

The Master of the High Court, Grahamstown

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application to Set Aside Sale in Execution and Related Relief.

Legal Issues

  1. 1 Whether the sale in execution of estate property without notice to the executor and Master is valid.
  2. 2 Whether the first respondent and Sheriff complied with section 30 of the Administration of Estates Act 66 of 1965.
  3. 3 Whether the process of service and attachment was lawfully effected.

Ratio Decidendi

The court held that the sale in execution of the estate property was conducted in contravention of section 30 of the Administration of Estates Act 66 of 1965, as neither the executor nor the Master was notified or authorized the sale. The process of service was defective, as the writ was not served on the executor but merely affixed to the deceased’s former residence. The statutory provisions are peremptory, and disregard thereof renders the sale and subsequent actions null and void. Only the executor, with the Master’s approval, may sell estate property, and creditors must prove their claims in accordance with the Act. The actions of the first respondent and the Sheriff were declared...

Court Disposition

Application granted. Sale in execution set aside. Deed of transfer and mortgage bond cancelled. Costs awarded against first respondent.

Orders

  • The sale in execution of the property is declared null and void.
  • The deed of transfer into the name of the third respondent is cancelled in terms of section 6 of the Deeds Registries Act 47 of 1937, if transfer has occurred.