Nkhwashu v Nkhwashu N.O. (A1228/06) [2008] ZAGPHC 382 (16 October 2008)

Nkhwashu v Nkhwashu N.O. (A1228/06) [2008] ZAGPHC 382 (16 October 2008)

The court held that the magistrate correctly applied the law by confirming the rule nisi, ordering the attachment and removal of the motor vehicles for estate administration. Section 26(1) of the Administration of Estates Act 66 of 1965 is peremptory and requires the executrix to take control of all estate assets. The appellant's arguments regarding the applicability of customary law and the need for physical possession were rejected, as the majority judgment in SA Human Rights Commission v President, RSA established that estates must be administered under the Act. The appellant's concession regarding ownership of the vehicles further undermined her case. The magistrate's jurisdiction was...

Citation
[2008] ZAGPHC 382
Parties
Appellant: Monicca Nkhwashu; Respondent: Seloane Selina Rossy Nkhwashu
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
16 October 2008
Case Number
A1228/06
Procedural Posture
Civil Appeal / Appeal Against Confirmation of Rule Nisi in Magistrate's Court
Outcome
Appeal dismissed with costs.
Judges
MSIMEKI, G. WEBSTER
Legal Topics
Administration of Estates Act, Executor Powers, Redistribution Agreement, Customary Law Vs Statute
Civil Procedure Family and Children Administration of Estates Act Executor Powers Redistribution Agreement Customary Law Vs Statute

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Parties

Monicca Nkhwashu

Appellant

Seloane Selina Rossy Nkhwashu

Respondent

Procedural Posture

Civil Appeal / Appeal Against Confirmation of Rule Nisi in Magistrate's Court

Legal Issues

  1. 1 Whether the magistrate erred in confirming the rule nisi ordering attachment and removal of motor vehicles for estate administration.
  2. 2 Whether Section 23 of the Black Administration Act 38 of 1927 was applicable or unconstitutional in the circumstances.
  3. 3 Whether the executrix required physical possession of estate assets under Section 26(1) of the Administration of Estates Act 66 of 1965.

Ratio Decidendi

The court held that the magistrate correctly applied the law by confirming the rule nisi, ordering the attachment and removal of the motor vehicles for estate administration. Section 26(1) of the Administration of Estates Act 66 of 1965 is peremptory and requires the executrix to take control of all estate assets. The appellant's arguments regarding the applicability of customary law and the need for physical possession were rejected, as the majority judgment in SA Human Rights Commission v President, RSA established that estates must be administered under the Act. The appellant's concession regarding ownership of the vehicles further undermined her case. The magistrate's jurisdiction was...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • It is so ordered.