THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 281/2019

In the matter between:

BAREND PETRUS JONES                                                                              APPELLANT

and

CHRISTINA HELENA PRETORIUS NO                                                                RESPONDENT

Neutral citation:
Jones
v
Pretorius
NO
(281/2019)
[2020] ZASCA
(29 September 2020)
Coram:
SALDULKER, VAN DER MERWE and DLODLO JJA and
GOOSEN and MABINDLA-BOQWANA AJJA
Heard:
Matter disposed of without oral hearing in terms of s 19(a) of
the Superior Courts Act 10 of 2013.
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time
for hand-down is deemed to be 10h00 on 29 September 2020.
Summary:    Deceased estate – agent appointed to administer estate on behalf of
executor – agency terminated upon death of executor - subsequent payments by agent
from estate funds to himself – not recoverable under s 50(b) of Administration of Estates
Act 66 of 1965 – remedy under s 50(b) not limited to condictio indebiti – payments
constituted unlawful appropriations of estate funds – recoverable by new executor by
reason of powers and duties attached to office of executor.

_____________________________________________________________________

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Mdalana-Mayisela AJ
sitting as court of first instance):
The applications for condonation are granted. The applicant in each application is
directed to pay the costs thereof.
The appeal is dismissed with costs.

JUDGMENT

Van der Merwe JA (Saldulker and Dlodlo JJA and Goosen and Mabindla-Boqwana
AJJA concurring)
[1] The respondent, Ms Christina Helena Pretorius NO, is the duly appointed
executor of the deceased estate of Mr Wilhelm Petrus Meyer (the estate). In that official
capacity she launched an application in the Gauteng Division of the High Court, Pretoria
against the appellant, Mr Barend Petrus Jones, for payment of the amount of
R1 148 828.13. The court a quo (Mdalana-Mayisela AJ) granted the application with
costs but gave leave to the appellant to appeal to this Court. The central issue in the
appeal is whether the respondent’s claim had a legal basis. The parties agreed that the
matter be disposed of without an oral hearing, in terms of s 19(a) of the Superior Courts
Act 10 of 2013.

[2] The material facts are not in dispute. The late Mr Meyer was the father of the
respondent. He passed away on 29 December 2012. He was survived by his spouse,
Mrs Cornelia Wilhelmina Gertruida Meyer, the mother of the respondent. In their joint
will, the survivor was nominated to be the executor of the estate, on condition that the
appellant, who practised as a chartered accountant under the name of Jones & Co, was
to act as the agent of the executor.

[3] As a result, and in anticipation of her appointment as the executor of the estate,
Mrs Meyer mandated the appellant to administer the estate on her behalf. She did so
by written power of attorney dated 25 January 2013. In terms thereof, the appellant
would be entitled to the executor’s fee in respect of the administration of the estate
(presumably in terms of the tariff provided for in reg 8 of the regulations promulgated
under s 103 of the Administration of Estates Act 66 of 1965 (the Act)).

[4] On 30 April 2013 the Master of the High Court, North Gauteng Division (the
Master) duly appointed Mrs Meyer as the executor of the estate. On
25 September 2013, however, Mrs Meyer also passed away. The appellant
nevertheless continued to administer the estate. Crucially, he caused the estate to pay
the total amount of R1 148 828.13 to himself, as follows:
‘(a)
R150,000.00 on 26 March 2014;
(b)
R78,000.00 on 27 March 2014;
(c)
R150,000.00 on 28 May 2014;
(d)
R78,000.00 on 29 May 2014;
(e)
R150,000.00 on 9 December 2014;
(f)
R250,000.00 and R142 828.13 on 27 December 2014;
(g)
R150,000.00 on 6 May 2015.’

[5] The amounts in (a) to (f) above purported to be payments of executor’s fees in
respect of the estate. The appellant said that the last payment (g) represented fees for
services that he had rendered to the Willie Meyer (Swaziland) Trust. He did not provide
any basis for the liability of the estate for these fees, but even if such liability is accepted,
it matters not, as I shall demonstrate. I should add that I make no imputation of
dishonesty on the part of the appellant. I accept that in making these payments he acted
in the bona fide belief that he was entitled to do so.

[6] A new executor was only appointed on 21 April 2016, when the Master issued
letters of executorship to the respondent. By that date, the Master had approved an
amended first and final liquidation and distribution account that the appellant had drawn.
The appellant had not, however, given proper notice in terms of s 35(5) of the Act that
the account would lie for inspection. It follows that no distribution of the estate as
provided for in s 35(12) of the Act, that is, in terms of an account which had laid for
inspection without any or successful objection thereto, had by then taken place.

The Master also did not approve the payment of any remuneration to the appellant.
After the respondent had taken possession of the estate files, she demanded
repayment of the said amount from the appellant and his failure to do so led to the
present litigation.

[7] As I have indicated, the appellant paid estate funds to himself after the death of
Mrs Meyer. As a general rule, a contract of agency is terminated by the death of either
the principal or the agent. See Sir J W Wessels The Law of Contract of South Africa
2 ed (1951) Vol I para 1675 and Ward v Barrett NO and Another [1962] 4 All SA 557
(N); 1962 (4) SA 732 (N) at 737D. The appellant correctly accepted that the general rule
is applicable to this matter. It follows that after the death of Mrs Meyer, the appellant
had no authority to act for the estate or to deal with its property. He particularly could
not lawfully make any payment from estate funds. Executor’s remuneration was in any
event not payable at the time, because of the provisions of s 51(4) of the Act. They
provide that an executor shall not be entitled to receive any remuneration before the
estate has been distributed as provided for in s 35(12), unless the payment of such
remuneration has been approved in writing by the Master.

[8] In written argument presented to this Court, the appellant correctly conceded that
these payments to the appellant constituted unlawful appropriations of estate funds.
Surprisingly, however, he maintained that the respondent’s claim nevertheless had to
fail on the ground that her application did not disclose a cause of action.

[9] In response hereto, the respondent relied on the provisions of s 50(b) of the Act,
as she did in the court a quo. It appears that the court a quo at least implicitly accepted
that s 50(b) provided the respondent with a remedy against the appellant.

[10] It is necessary to reproduce s 50 in its entirety:
’50. Executor making wrong distribution
Any executor who makes a distribution otherwise than in accordance with the provisions of
section thirty-four or thirty-five, as the case may be, shall-
(a)
be personally liable to make good to any heir and to any claimant whose claim was
lodged within the period specified in the notice referred to in section twenty-nine, any
loss sustained by such heir in respect of the benefit to which he is entitled or by such

claimant in respect of his claim, as a result of his failure to make a distribution in
accordance with the said provisions; and
(b)
be entitled to recover from any person any amount paid or any property delivered or
transferred to him in the course of the distribution which would not have been paid,
delivered or transferred to him if a distribution in accordance with the said provisions
had been made: Provided that no costs incurred under this paragraph shall be paid out
of the estate.’

[11] Both the language and the context of s 50 indicate that it has limited application.
It deals with the position of an executor who made a distribution otherwise than in
accordance with the provisions of s 34 (in respect of an insolvent deceased estate) or
s 35 of the Act. It firstly saddles an executor who made a wrong distribution with
personal liability for any resultant loss sustained by an heir or claimant. Secondly it
affords such an executor the right to recover what was wrongly paid, delivered or
transferred.

[12] In Els NO v Jacobs 1989 (4) SA 622 (SWA) at 629-630, the court held that the
application of s 50(b) is limited to circumstances in which the condictio indebiti would
be available. On behalf of the respondent it was contended that this case had been
wrongly decided on this point. I agree. There is no indication of such a limitation in the
text or context of s 50. On the contrary, if that was intended, there would be no need for
the provision. In my opinion s 50(b) provides a self-standing statutory remedy and the
decision to the contrary in Els NO v Jacobs should not be followed.

[13] Thus, s 50(b) permits recovery of what an executor wrongly distributed. The Act
defines an executor as a person ‘who is authorized to act under letters of executorship
granted or signed and sealed by a Master, or under an endorsement made under
section fifteen.’ (Section 15 of the Act is not applicable to the matter.) This recovery may
no doubt be made by the legal successor of such executor. An executor may also, of
course, act through an agent. The acts of a duly authorised agent are in law those of
the executor. But a payment from estate funds by a person who is neither an executor
as defined nor his or her duly authorised agent, falls outside the scope of s 50. And an
unlawful appropriation of estate funds by a person who has no authority whatsoever to
deal with the estate, can hardly be said to be a distribution within the meaning thereof
in s 50.

[14] It follows that the respondent’s claim did not fall within the ambit of s 50(b). Does
this mean that even though the appellant admitted that these payments constituted
unlawful appropriations of estate funds to him, the estate was remediless? Certainly
not. As I shall show, the answer lies in the powers and duties attached to the office of
an executor.

[15] A deceased estate is an aggregate of assets and liabilities. Rights of action that
vest in an estate, naturally form part of the assets thereof. See Lockhat’s Estate v North
British & Mercantile Insurance Co. Ltd 1959 (3) SA 295 at 302F-G. Upon his or her
appointment, only the executor has powers and duties to deal with the estate. His or
her rights and obligations are derived from the common law and statutory provisions.
One of the main obligations of an executor is to recover what is due to the estate. And
only the executor may institute legal proceedings to do so. The position is summarised
in D Meyerowitz The Law and Practice of Administration of Estates and Their Taxation
2010 ed at 12-23 – 12-24, para 12.26:
‘Upon his appointment the executor becomes entitled to deal with all the assets of the estate
and it is his duty to recover all assets, in whatever form they may be, whether immovable,
movable, corporeal or incorporeal, which belong to the estate but which are in the hands of, or
may be owed by, third parties. It is for him to decide whether the estate has any claim against
a third party and the advisability of instituting action to recover.’

[16] In the result the respondent was not only entitled but obliged to recover the estate
funds that had unlawfully been appropriated by the appellant. That the office of executor
of the estate entitled the respondent to recover the unlawful appropriations from the
appellant, was adequately raised in the founding affidavit. It follows that the appeal must
fail.

[17] The appellant applied for condonation of the late filing of his notice of appeal and
the respondent, in turn, applied for condonation of the late filing of heads of argument.
The respective applications were not opposed and should be granted. Each applicant
for condonation should bear the costs of the application.

[18] The following order is issued:
The applications for condonation are granted. The applicant in each application is
directed to pay the costs thereof.
The appeal is dismissed with costs.

_______________________
C H G VAN DER MERWE
JUDGE OF APPEAL

APPEARANCES

For appellant:
J Truter
Instructed by:

Surita Marais Attorneys, Pretoria

E C Cooper Majiedt Incorporated, Bloemfontein

For respondent:
P J Vermeulen SC
Instructed by:

W F Bouwer Attorneys, Pretoria

Wessels & Smith Attorneys, Bloemfontein.
SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
FROM

The Registrar, Supreme Court of Appeal
DATE

29 September 2020
STATUS

Immediate
Jones v Pretorius NO (281/2019) [2020] ZASCA 113 (29 September 2020)
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
Today the Supreme Court of Appeal (the SCA) dismissed the appeal of the appellant,
Mr Barend Petrus Jones, against the decision of the Gauteng Division of the High Court,
Pretoria. The High Court ordered the appellant to pay the amount of R1.1m to the respondent.
The respondent is Ms Christina Helena Pretorius NO, in her capacity as the executor of his
deceased estate of Mr Wilhelm Petrus Meyer. Mr Meyer was survived by his spouse, Mrs
Cornelia Wilhelmina Gertruida Meyer. In their joint will, Mrs Meyer was nominated as the
executor of the estate, on condition that the appellant was to act as the agent of the executor.
Mrs Meyer mandated the appellant to administer the estate on her behalf and agreed that he
would be entitled to the executor’s fee. After her appointment, Mrs Meyer passed away. The
appellant continued to administer the estate and caused it to pay to him the total amount of
R1.1m. The respondent was subsequently appointed as the executor. By then the Master had
approved a liquidation and distribution account that the appellant had drawn. He did not,
however, give proper notice in terms of s 35(5) of Administration of Estates Act 66 of 1965
(the Act). Upon her appointment, the respondent demanded repayment of the said amount
from the appellant and his failure to do so led to the present litigation.
The SCA held that as a general rule, a contract of agency is terminated by the death of the
principal or the agent. After the death of Mrs Meyer, the appellant had no authority to act for
the estate or to deal with its property nor to lawfully make any payment from estate funds. The
appellant conceded that these payments constituted unlawful appropriations of estate funds.
The respondent relied on s 50(b) of the Act, which provide that an executor who makes a
distribution otherwise than in accordance with the Act shall be entitled to recover from any
person any such amount paid. The SCA held that the unlawful appropriation of estate funds
by a person who has no authority to deal with the estate, falls outside the scope of s 50.
Therefore, the respondent’s claim did not fall within the ambit of s 50(b).
Nonetheless, the SCA held that only the executor had powers and duties to deal with the
estate. One of the main obligations of an executor was to recover what was due to the estate.
In the result, the respondent was entitled and obliged to recover the funds that had unlawfully
been appropriated by the appellant. The appeal was accordingly dismissed.