Oliphant N.O v Oliphant and Others (448/2017) [2018] ZANCHC 56 (18 May 2018)

Oliphant N.O v Oliphant and Others (448/2017) [2018] ZANCHC 56 (18 May 2018)

The court found that the applicant's claim was subject to prescription under section 11(d) of the Prescription Act, as it constituted a debt. The estate had not been properly wound up, and there was no evidence that the liquidation and distribution account had been confirmed prior to the transfer of the property. The applicant, as an heir, did not have locus standi to challenge the registration of the property, as only the executor is empowered to liquidate and distribute the estate. However, considering the arguments and the Supreme Court of Appeal judgments cited, the court concluded that another court may reach a different decision on these issues, and therefore granted leave to appeal...

Citation
[2018] ZANCHC 56
Parties
Applicant: Cecilia Kenewang Oliphant N.O.; Respondent: Lucas Oliphant; Respondent: David Oliphant; Respondent: The Master of the Northern Cape High Court, Kimberley; Respondent: The Registrar of Deeds, Kimberley
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
18 May 2018
Case Number
448/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Order Upholding Special Pleas of Prescription and Locus Standi.
Outcome
Leave to appeal is granted to the Full Bench of the Northern Cape High Court.
Judges
BM Pakati
Legal Topics
Prescription Act, Administration of Estates Act, Locus Standi, Immovable Property Transfer, Liquidation and Distribution Account
Land and Property Civil Procedure Prescription Act Administration of Estates Act Locus Standi Immovable Property Transfer Liquidation and Distribution Account

Case Brief

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Parties

Cecilia Kenewang Oliphant N.O.

Applicant

Lucas Oliphant

Respondent

David Oliphant

Respondent

The Master of the Northern Cape High Court, Kimberley

Respondent

The Registrar of Deeds, Kimberley

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment and Order Upholding Special Pleas of Prescription and Locus Standi.

Legal Issues

  1. 1 Whether the applicant's claim regarding the immovable property in the deceased estate has prescribed under the Prescription Act.
  2. 2 Whether the applicant, as an heir, has locus standi to challenge the registration of the property into the first respondent's name.
  3. 3 Whether the estate was properly wound up and the liquidation and distribution account confirmed before transfer of the property.

Ratio Decidendi

The court found that the applicant's claim was subject to prescription under section 11(d) of the Prescription Act, as it constituted a debt. The estate had not been properly wound up, and there was no evidence that the liquidation and distribution account had been confirmed prior to the transfer of the property. The applicant, as an heir, did not have locus standi to challenge the registration of the property, as only the executor is empowered to liquidate and distribute the estate. However, considering the arguments and the Supreme Court of Appeal judgments cited, the court concluded that another court may reach a different decision on these issues, and therefore granted leave to appeal...

Court Disposition

Leave to appeal is granted to the Full Bench of the Northern Cape High Court.

Orders

  • The application for leave to appeal is granted to the Full Bench of this Division.