CASE NO. 541/98
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
A R Fairleigh NO
Appellant
and
M Whitehead
First Respondent
The Master of the Supreme Court
Second Respondent
Before: Hefer  ADCJ, Smalberger, Olivier, Schutz JJA and Mthiyane AJA
Heard:
1 September 2000
Delivered:
29 September 2000
Interpretation and operation of the since-invalidated ss 44(1) and (2) of the
Insurance Act 27 of 1943, which dealt with insurance policies effected or ceded in
favour of a wife.
W P SCHUTZ

____________________________________________________________
____
J U D G M E N T
____________________________________________________________
____
SCHUTZ JA:
[1] The issue in this appeal is whether the deeming provision contained in s 44
(2) of the Insurance Act 27 of 1943 (“the Act”) came into operation in respect of
certain life policies before 27 April 1994 (when the interim Constitution came into
force).  If it did, then the proceeds of those policies (save for an exempted sum of
R30 000) fell into the  estate of the deceased, Mr Geoffrey Dale Whitehead (“the
deceased”), who died at Durban on 10 March 1994 (that is before the interim
Constitution became law).  If the deeming provision did not operate, then the
proceeds of the policies will remain with his widow, Mrs Margaret Whitehead

(“Mrs Whitehead”) in whose favour they were taken out by the deceased, more
than two years before his death.  The Whiteheads were married out of community
of property in 1960.  She is the respondent on appeal, having successfully opposed
an application for payment of the proceeds of the policies, brought by the
deceased’s executor, Mr Alan Robert Fairleigh (“the executor”) before Alexander
J in the Durban and Coast High Court.  Leave to appeal was granted by the court
a quo.
[2] The significance of the interim Constitution lies in the decision of the
Constitutional Court in Brink v Kitshoff NO 1996 (4) SA 197 (CC) in holding that
subsections 44 (1) and (2) were invalid for being contrary to the equality clause (s
8). The declaration of invalidity was to have effect from 27 April 1994.  For the
executor the decision meant that, whereas before 27 April he would have been
entitled to rely on the appropriate deeming clause contained in ss 44 (1) or (2),
thereafter he had to show that one of those clauses had already vested a right in him

by that date.
[3] The relevant parts of s 44 read:
“44(1)
If the estate of a man who has ceded or effected a life policy .
. . has been sequestrated as insolvent, the policy [or its proceeds]
shall be deemed to belong to that estate: Provided that, if the
transaction in question was entered into in good faith and was
completed not less than two years before the sequestration -
(a)
by means or in pursuance of a duly registered antenuptial
contract, the preceding provisions of this sub-section shall not
apply . . .;
(b)
otherwise than by means or in pursuance of a duly registered
antenuptial contract, only so much of the total value of all such
policies [or their proceeds] as exceeds thirty thousand rands
shall be deemed to belong to the said estate.
(2)
If the estate of a man who has ceded or effected a life policy as
aforesaid, has not been sequestrated, the policy [or its proceeds]
shall, as against any creditor of that man, be deemed to be the
property of the said man -
(a)
in so far as its value, together with the value of all other life
policies ceded or effected as aforesaid [and their proceeds]
exceeds the sum of thirty thousand rands, if a period of two
years or longer has elapsed since the date upon which the said
man ceded or effected the policy; or
(b)
entirely, if a period of less than two years has elapsed between
the date upon which the policy was ceded or effected, as

aforesaid, and the date upon which the creditor concerned
causes the property in question to be attached in execution of
a judgment or order of a court of law.
(3)
When a woman, who is married in community of property, owns a life
policy . . . which falls outside that community . . ., but which may
lawfully be wholly or partly attached in execution of a judgment given
against her husband, that policy, . . . shall not be so attached by any
creditor of her husband, unless the assets which they own jointly are
insufficient to satisfy the creditor’s claim, and if the policy . . . is used
in payment of any such claim, the woman shall be entitled to a refund
. . . out of any policy or money belonging to her husband which is
withheld from his creditors or the trustee of his insolvent estate in
terms of section thirty-nine.”
(Emphasis supplied.)
[4] The executor was appointed on 21 November 1994.  On 28 August 1995 he
made demand on Mrs Whitehead to pay over the proceeds of the policies (save for
R30 000 to which she was in any event entitled.)  On 16 November 1995 he gave
notice to the creditors of the estate in terms of s 34(1) of the Administration of
Estates Act 66 of 1965 (“the Estates Act”) that unless otherwise instructed he
intended to administer the estate as if he were a trustee in insolvency.  The creditors

were content that he should do so.  Accordingly a “deemed state of sequestration”
came into operation in December 1995.  At no stage has the estate been
sequestrated by the court.
[5] Section 44 dealt with two situations in which insurance benefits conferred on
a wife by her husband could be utilized for the benefit of his creditors, either to the
full extent of the benefit or to so much of it as exceeded R30 000.  The first
situation was where the husband’s estate “has been sequestrated” (s 44 (1)).  The
second was where his estate “has not been sequestrated” (s 44 (2)). Assuming for
the sake of argument that the executor’s notification operated as a sequestration for
the purposes of s 44, the executor cannot rely upon it now, because the notification
took effect long after the section ceased to be law (December 1995 as against April
1994).  That does not mean, however, that a s 44 (1) situation did not come into
existence, even if too late for the executor’s purposes.  As the deceased’s estate
was in fact insolvent, it was only a matter of time before it would be sequestrated

(in the technical sense) or administered as insolvent under s 34 of the Estates Act.
So far I have assumed that a s 34(1)  notification satisfies the “has been
sequestrated” pre-condition for the operation of s 44 (1).  In Hugo NO v Lipkie
1961 (3) SA 66 (O) it was held that the predecessor of s 34(1)  (s 48 (3) (b) of the
Administration of Estates Act 24 of 1913) did not satisfy the requirement.  The
main reason for so holding was that the former section did not fix a time when the
process of realisation and distribution would begin (at 70 G-H).  The current
section does provide for a fixed time, so that this problem in interpretation has
fallen away.  Moreover, since Hugo’s case, this court has held that the procedures
under the old Estates Act had an effect similar to a sequestration order, even though
there was no order of court: Ward v Barrett NO and Another NO 1963 (2) SA 546
(A) at 552 B-H.  See also Gordon & Getz on The SA Law of Insurance 4 ed 349 -
350.  I do not think that there is any reason to treat s 44 as being narrowly focussed
upon forms of procedure.  It is concerned rather with distinguishing between the

situation where an estate is being administered as insolvent and the situation where
it is treated as solvent.  Accordingly I conclude that s 44 (1) would have applied in
this case had the subsection not been declared  invalid.  The executor has not
based his appeal on s 44(1).
[6] But  the conclusion that I have reached concerning s 44(1) leaves
unanswered the further question, whether s 44 (2) may have operated so as to vest
the policies in the deceased before his death on 10 March 1994, so that they passed
to his deceased estate before the coming into operation of the interim Constitution
on 27 April 1994, which, as the Constitutional Court later declared, had the effect
of repealing  s 44  because of its inconsistency with the equality clause.
[7] Two opposed interpretations of s 44 (2) have been put forward.  For the
executor, emphasis is placed on the words in s 44 (2) “. . . the policy . . . shall . .
. be deemed to be the property of the said man [the husband] . . . .”  The effect of
these words, so it is argued, is that from the moment that a husband benefits his

wife with a policy, the policy is deemed to be the property of the husband.  The
provisions of subsections (a) and (b) of s 44 (2) are not  pre-conditions to such
deeming, but serve merely to determine how much of the policy falls into the
husband’s estate.  This situation continues to prevail until such time as the husband
may be sequestrated, in which case the policy falls into his insolvent estate under
s 44 (1).  I do   not agree with this argument.  My reasons will be set out later.
[8] The contrary argument is that the deeming provision does not operate from
the time that the wife is benefitted, but only if and when a creditor attaches the
policy in execution, in order to obtain payment of a judgment debt owed him by the
husband.  The subsection is intended to give speedy relief to a creditor who would
rather not follow the longer and more expensive route of sequestration.
[9] My reasons for accepting the latter argument, advanced on behalf of Mrs
Whitehead, are these:
First, the words used in the section .  Section 44 (2) does not read “shall be

deemed to be the property of the said man.”  It reads  “shall, as against any creditor
of that man, be deemed to be the property of the said man”.  By contrast with the
concursus-orientated  wording of s 44 (1) “shall be deemed to belong to that
estate”, there is a specific deeming conceived in favour of a particular creditor.
Further, it is implicit that a particular creditor at a particular time is envisaged.  This
is so because without a fixed time the periods of more than or less than two years
could not be established on the calendar.  The executor’s argument, on the other
hand,  might involve conclusions which it is difficult to suppose were intended.  If
the deeming operated when the wife was first benefitted, but the husband then had
no creditors, one would  have to conclude that the expression “as against any
creditor” was redundant.  Or if one has to wait for the deeming to operate only
when a creditor is acquired, is the deeming undone  when the husband again
becomes creditor-free?  And so on.
[10] Secondly, if the husband is deemed to be owner from the outset, what rights

could the wife have?  None, one must suppose, except some ultimate reversionary
right.  Yet the section itself envisages that she might convert the policy into other
assets.  Thus, no doubt, she might surrender the policy.  Is she to be denied the
right to pledge her policy with a bank in order to obtain an overdraft?  How can
such actions be squared with the policy “belonging” to the husband?  That it is she
who owns the policy until its attachment by the husband’s creditor is confirmed by
the express words of s 44 (3), in its opening lines, “when a woman who is married
in community of property . . . owns a life policy . . .”  The purpose of this
subsection is to bring about that, where there are joint assets, the burden of
execution should as far as possible fall upon them, and not upon the policy
“owned” by the wife outside the community.  See also the reference to “the policy
. . . belonging to her husband” towards the end of the subsection.  A practical
interpretation of s 44 (2) leads to the conclusion, in my opinion,  that the wife and
not the husband owns a policy made over by him to her, until such time as a

creditor attaches  it in payment of his judgment debt. To interpret s 44 (2) as
enjoining an anticipatory nullification as a step precursory to an event that in all
probability will never occur (attachment by a creditor),  might seriously hamper the
wife whilst not conferring upon creditors any benefits beyond those obtained by
attachment.
[11] Thirdly, the calculation of the period of less than two years provided for in
s 44 (2) (b) depends necessarily upon there being an attachment by a creditor.
Thus if no creditor chooses to attach, this part of s 44 (2) cannot operate.  As the
amount deemed to belong to the husband  is dependent upon whether a period of
more than or less than two years has run, it would mean that subsection 44 (2) is
substantially inoperable, unless an attachment is postulated.
[12] Fourthly, the argument for the executor must involve that at the time that the
wife is benefitted the amount of the benefit is unknown, because it cannot be known
at that stage whether the wife will receive the benefit of the R30 000, which may be

allowed to her.  Or is it to be concluded that initially the full amount of the policy
falls into the husband’s estate, but after two years R30 000 disappears out of it to
find its way into the wife’s estate?  An unlikely intention, it seems to me.
[13] Finally, I think there is substance in the remark of Hartzenberg J in Kitshoff
NO v Brink and Andere 1997 (4) SA 117 (T) at 126 F - H that the very fact that
there is a deeming (the Afrikaans text of s 44 (2) reads “word die polis . . . beskou
as die eiendom van daardie man”) indicates that the policy is not in fact owned by
the husband.  The deeming provision, it seems to me, is designed to create the
fiction that the husband never made over the policy to the wife, so that his creditor
may attach it, rather than to vest ownership in the husband against all comers and
at all times, as the executor contends happened.
[14] My conclusion is that s 44 (2) cannot operate unless a creditor makes an
attachment.  No attachment was effected before 27 April 1994.  Therefore nothing
vested in the executor before the law upon which his case was based was

consigned to history.
[15] The appeal is dismissed with costs.
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
HEFER ADCJ
SMALBERGER JA
MTHIYANE AJA
OLIVIER JA
[1] It happens from time to time that the insolvency of the estate of a
person manifests itself onlyafter his death.   Those interested in the winding up of
the estate can then proceed in one of three ways: a creditor may apply to court for
the compulsory sequestration of the estate;  the executor may surrender the estate
to the court as insolvent, thereby achieving its sequestration;  and thirdly the
executor may follow the “informal” route of s 34 of the Administration of Estates Act
66 of 1965 (“the 1965 Estates Act”).   This section creates the machinery whereby
the executor can give notice to creditors that the estate is insolvent.   Unless a
majority in number and value of all the creditors instruct him in writing within a
period (not less than fourteen days) specified in the notice, to surrender the estate
under the Insolvency Act 24 of 1936 (“the Insolvency Act”), the executor must
proceed to realize the assets in the estate and to distribute the proceeds in the
order of preference prescribed under the Insolvency Act in the case of a
sequestrated estate.
[2] In the ordinary course the question, whether the end result of the informal
route described above amounts to a “sequestration”, would seem to be a nice but
wholly academic one.   But sometimes it assumes great practical importance.
This is such a case.
[3] Mr Geoffrey Dale Whitehead and Mrs Margaret Whitehead were
married to each other out of community of property on 12 November 1960.  The
marriage was terminated when Mr Whitehead died on 10 March 1994.    I will refer
to him as the deceased and to his widow as the first respondent.
[4] While married, the deceased, during the period 1980 - 1991, effected
various life policies on his own life and nominated the first respondent as the
beneficiary in each.   After the death of the deceased, the insurance companies
concerned paid the proceeds of the policies to the first respondent as follows:
Old Mutual Policy No 7065929: R45 670,00 paid on 7

April 1994;
Federated Life Insurance Company Limited, Policy
VA202437: R59 836,00 paid on 21 April 1994;
Standard General Insurance Company Limited Policy
No 846624: R565 173,05 paid on 25 April 1994.
[5] On 21 November 1994 the appellant was appointed executor of the
estate of the deceased, after the resignation of a previous executor.   As the estate
was unable to meet the claims of its creditors, the appellant, on 16 November 1995,
gave notice to the creditors in terms of s 34 (4) of the 1965 Estates Act of such
insolvency.   The appellant was not instructed by creditors to surrender the estate.
No other creditor applied for its compulsory sequestration.   The appellant pursued
the informal route described above.   The deemed date of sequestration, according
to s 34 (1) of the 1965 Estates Act, occurred in December 1995.
[6] The estate being unable to pay the claims of its creditors, the
appellant now turned his attention to the various sums of money paid by the
insurance companies to the first respondent.   He decided to claim them for the
benefit of the estate.   He based his claim on the provisions of s 44 (1) and (2) of
the Insurance Act 27 of 1943 (“the Insurance Act”) which, at all times relevant
hereto, read as follows:
“(1)
If the estate of a man who has ceded or effected a life policy in terms of s forty
two or forty three has been sequestrated as insolvent, the policy or any
money which has been paid or has become due thereunder or any other asset
into which any such money was converted shall be deemed to belong to that
estate: Provided that, if the transaction in question was entered into in good
faith and was completed not less than two years before the sequestration -
(a)
by means or in pursuance of a duly registered
antenuptial contract, the preceding provisions
of this subsection shall not apply in connection
with the policy, money or other asset in
question;
(b)
otherwise than by means or in pursuance of a
duly registered antenuptial contract, only so
much of the total value of all such policies,
money and other assets as exceeds thirty
thousand rand shall be deemed to belong to
the said estate.

(2)
If the estate of a man who has ceded or effected a life policy
as aforesaid, has not been sequestrated, the policy or any
money which has been paid or has become due thereunder or
any other asset into which any such money was converted
shall, as against any creditor of that man, be deemed to be the
property of the said man -
(a)
in so far as its value, together with the value of
all other life policies ceded or effected as
aforesaid and all moneys which have been paid
or have become due under any such policy and
the value of all other assets into which any
such money was converted, exceeds the sum
of thirty thousand rand, if a period of two years
or longer has elapsed since the date upon
which the said man ceded or effected the
policy; or
(b)
entirely, if a period of less than two years has
elapsed between the date upon which the
policy was ceded or effected, as aforesaid, and
the date upon which the creditor concerned
causes the property in question to be attached
in execution of a judgment or order of a court of
law.”  (My emphasis)
[7] In March 1997 the appellant launched the application now under

consideration in the Durban and Coast Local Division of the High Court against the
first respondent, claiming payment of the said amounts.   She opposed the
application.   The Master of the Supreme Court was cited as second respondent.
He abides the decision of the court.
[8] The application was dismissed and an appropriate costs order made by
Alexander J on 3 March 1998.   The learned judge subsequently granted the
appellant leave to appeal to this Court.
[9] Because of the differing legal results that emanate from the
respective applications of ss 44 (1) and (2) of the Insurance Act I must, therefore,
turn to the vexed question whether the end result of the steps taken by an executor
of a deceased estate in terms of s 34 of the 1965 Estates Act, amounts to a
“sequestration”, at least for the purposes of ss 44 (1) and (2) of the Insurance Act.

[10] In endeavouring to find an answer to this problem, one must distinguish
between the provisions of the previous Administration of Estates Act 24 of 1913

(“the 1913 Estates Act”) and the present 1965 Estates Act, relating to the “informal”
procedure whereby an executor deals with an insolvent deceased estate.
[11] The relevant provision of the 1913 Estates Act was s 48 (3) (b).   It read:
“If the Master be not satisfied as aforesaid as to the value of the assets the
executor shall immediately report, in writing, the position of the estate to the
creditors, informing them that unless a majority in number and value of all the
creditors instruct him in writing to surrender the estate, he will proceed to
realise the estate and will distribute the same as if he were a trustee
distributing an insolvent estate.   Unless creditors to the number and value
aforesaid instruct the executor within a reasonable time to surrender the
estate he shall proceed so to realise and distribute the same, but nothing in
this section contained shall prevent a creditor from applying to the Court for
the sequestration of the estate as insolvent, and the Court may order the
sequestration of the estate if satisfied that the sequestration will be for the
benefit of the creditors generally.”
The section did not state what the legal effect of the procedure was, except
that the executor must realise the estate and will distribute the same “... as if he
were a trustee distributing an insolvent estate”.
[12] Two cases were decided in respect of the legal effects of this “informal
distribution” under the 1913 Estates Act:   Hugo N O v Lipkie 1961 (3) SA 66 (O),

decided by Potgieter J; and Ward v Barrett, N O and Another, N O 1963 (2) SA
546 (A), a judgment of this Court delivered by Steyn CJ.
[13] The very question now under discussion arose in Hugo N O v Lipkie,
supra, where it was held that the informal procedure described above was not a
sequestration for the purposes of ss 44 (1) and (2) of the Insurance Act.
Potgieter J stated at 70 E - H
“But it seems also clear from the very wording of sec. 44 (1) of the Insurance
Act, that the Legislature could never have had a realisation and distribution in
terms of sec. 48 (3) of the Administration of Estates Act in mind when the
words ‘has been sequestrated as insolvent’ were used.   The words clearly
seem to suggest that sequestration is a condition precedent to the policy
belonging to the estate - in other words something must first happen before
the policy is deemed to belong to the estate.   If realisation and distribution in
terms of sec. 48 (3) are also included in the words ‘sequestrated’, at what
point of time in the process of realisation and distribution ‘has the estate been
sequestrated’?   To my mind the Legislature must have had in mind a fixed
point of time after which the policy becomes ‘deemed to belong to that estate’
and if that is so the only reasonable interpretation to be placed on the words
is that the policy is deemed to belong to the estate only after it has been
sequestrated by the Court.”
[14] In Ward, the executrix had by letter, dated 9 June 1960, reported that the

estate was in fact insolvent.   She advised the creditors that unless instructed by
them to surrender the estate formally as insolvent in terms of the Insolvency Act
before 23 June 1960, she would proceed to realise and distribute it as if she were
a trustee distributing an insolvent estate.   She was not instructed by the creditors
to surrender the estate and followed the informal route of the Estates Act.   On 22
September 1960 the executrix caused a bond to be registered over an asset in the
deceased’s estate in favour of the appellant.   Later, she refused to recognise the
validity of the bond in the liquidation and distribution account.   The appellant  un-
successfully sought the assistance of  the Master.   She then applied for an order
requiring the account to be amended by recognising her preference under the
bond.   The application was dismissed and the matter came before this Court.
[15] The Court dismissed the appeal.   In so doing he held that although the
position brought about by the application of the provisions of s 48 (3) (b) of the
1913 Estates Act, i.e. the informal procedure, was not in all respects equivalent to
that created by a sequestration order under the Insolvency Act, it did have the

effect of initiating a concursus creditorum.   Even in the absence of an order of
court, the expiry of the date set for instructions by the creditors “ ...was apparently
intended by the Legislature to have a similar effect.”   As from that date (i.e. the
expiry of the date set for instructions by the creditors) there was a concursus
creditorum.   In the result the executrix was not entitled to deal with an asset of the
estate in such a way that one creditor received a preference above others (see p
552 B - H in fine).
[16] There are important features in the Ward case which should be kept in
mind.   The first is that the Court was not required to interpret the word
“sequestrated”.   The second is that it in fact disavowed a full identification of the
effect of the informal procedure under s 48 (3) (b)  of the 1913 Estates Act with
sequestration, notwithstanding the words in that section that the executor, in such
a case, “will proceed to realise the estate and will distribute the same as if he were
a trustee distributing an insolvent estate.”
The third noteworthy feature is that no reference was made to Hugo

N O v Lipkie, supra, either in the heads of argument of counsel for the parties, or
in the judgment itself.
[17] The 1913 Estates Act was repealed in by the 1965 Estates Act.   The
relevant provisions are now contained in s 34 the terms of which I have set out
above.    Of particular importance is the new s 34 (5), which now provides that in
so far as a date of sequestration is relevant for the purposes of the distribution
of an estate under that section such date shall be deemed to be the day
immediately following the date on which the period specified in the relevant notice
has expired.
[18] The genesis of this new section was obviously the question posed by
Potgieter J in  Hugo N O v Lipkie, supra, viz:   If realisation and distribution in
terms of s 48 (3) of the 1913 Estate Act are also included in the word
‘sequestrated’, at what point of time in the process of realisation and distribution
has the estate been sequestrated?
Section 34 (5) of the Estates Act now answers that question, and in doing

so it has  removed the main ratio of the judgment of Potgieter J on this point; for
it seems implausible that the legislature intended that the conclusion reached in
Hugo N O v Lipkie, supra, would remain valid.   To my mind,    s 34 (5) gives a
clear indication that the end result of the s 34 procedure is a sequestration of the
estate at the moment mentioned therein.   The change in wording between the
1913 and the 1965 Estates Acts on this aspect is too clear to negate, especially
when seen as a response to  the two decisions mentioned above.
[19] The first decision on the point now under consideration under the 1965
Estates Act was that of Van den Heever J in Miller N O v Smit 1986 (1) SA 320
(C).
In that case the informal route of s 34 of the 1965 Estates Act was not
followed, but this was not a central issue in the case.   What was said by Van den
Heever J in respect of the interpretation of the word “sequestrated” in ss 44 (1)
and (2) of the Insurance Act, must thus be regarded as obiter.   Nevertheless the
learned judge assumed that the informal route might have been followed.   She

stated at 326 H - I:
“According to Ward v Barrett NO and Another NO 1963 (2) SA 546 (A),  a
concursus creditorum would be initiated by the s 34 procedure which again
in the view of many of the writers, brings s 44 (1) of the Insurance Act into
operation.”
The learned judge did not decide the point at all, stating expressly that s 44
(2) applied in that case  -  thereby accepting that there had not been a
sequestration.   The difference in the wording of the 1913 and the 1965 Estates
Act was not mentioned.
This case, therefore, despite favouring the synonymity of sequestration and
the informal process of s 34 of the 1965 Estates Act, can not really be regarded
as authority one way or the other on the question before us.
[20] In the Constitutional Court case of Brink v Kitshoff N O 1996 (4) SA 197
(CC), ss 44 (1) and (2) of the Insurance Act were challenged on the basis that
they discriminate unfairly against women, thereby violating s 8 of the Constitution
of the Republic of South Africa Act 200 of 1993.   The question of the meaning to

be given to the word “sequestrated” in ss 44 (1) and (2) of the Insurance Act was
raised, but the Court, quite properly in my view, held that it had no jurisdiction to
decide either on the question when an estate becomes entitled to the proceeds of
a life insurance policy in terms of s 44 of the said Act or the question when a
concursus creditorim is deemed to have been initiated (see par [28] of the
judgment of O’Regan J).   This latter question was, in terms of par 3 of the order
of the Constitutional Court, referred back to the court a quo.
[21] The matter, so referred back by the Constitutional Court, came before
Hartzenberg J (sub nom Kitshoff N O v Brink and Andere 1997 (4) SA 117 (T)
).   The facts in that case were, for all intents and purposes, similar to those in
the present case (see p 122 C - 123 G for a summary of the facts).  In respect
of the question whether a “sequestration” had taken place, Hartzenberg J solved
the problem in this way:   the Constitutional Court had declared invalid the
deeming provisions of ss 44 (1) and (2) of the Insurance Act with effect from 27
April 1994; the estate was not sequestrated on or before that date; further, no

concursus creditorum had been effected in terms of s 34 of the 1965 Estates
Act, because such a concursus would only come into existence after the expiry
of the notification to creditors in terms of s 34    - this follows from the decision
in Ward v Barrett N O and Another N O, supra, and because s 34 (5) of the
1965 Estates Act now specifically lays down that the day after the date of expiry
of the said notification is deemed to be the date of sequestration.   In the result,
no sequestration or concursus creditorum had taken place before 27 April
1994, and, for the purposes of ss 44 (1) and (2) of the Insurance Act, there had
not been a “sequestration”.
The learned judge then proceeded to deal with
the matter in terms of s 44 (2).
[22] From what I have said before, in paragraphs [21], [22] and [23], it will be
clear that I believe that the correct interpretation of the word “sequestrated” in
s 44 (1) of the Insurance Act includes the conclusion of the informal procedure
followed by the executor of an insolvent deceased estate in terms of s 34 of the
1965 Estates Act.   It follows from this that Hartzenberg J was wrong, on this

aspect, in the case just discussed in holding that there had not been a
sequestration.   He did not analyse the difference between the 1913 and the
1965 Estates Acts.
[23] As also indicated above, I am of the view that the sequestration in terms
of ss 44 (1) of the Insurance Act need not take place before the man’s death.
It can occur long after his death and while his estate is being administered by
the executor: whether because of compulsory sequestration by a creditor; or
because of voluntary surrender by the executor; or because of conclusion of the
informal process in terms of s 34 of the 1965 Estates Act.
It is, therefore, wrong to say that because the sequestration in the present
case occurred after 27 April 1994 (the relevance of which I will discuss just now)
that there had not been a sequestration.   It is a non sequitur.   Such a
conclusion would also fly in the face of the plain meaning of s 44 (1) of the
Insurance Act.   There was a sequestration, no matter when it occurred.
[24] Based solely on these facts and on this reasoning, I would have

concluded that s 44 (1) of the Insurance Act governs the present case, with
resultant  success for the appellant.   S 44 (2) of the Insurance Act clearly does
not come into the picture, there having been a sequestration.
[25] But what is the effect of the judgment of the Constitutional Court in Brink
v Kitshoff N O 1996 (4) SA 197 (CC)?   In that case, the challenge to the
constitutional validity of s 44 (1) and (2) of the Insurance Act was successful.
A declaration to that effect was called for.   As always, the effect of the
retrospectivity of such an order required careful consideration.   The
Constitutional Court, per O’Regan J, specifically limited the declaration of the
invalidity of the deeming provisions of ss 44 (1) and (2) of the Insurance Act to
27 April 1994, i.e. the date of commencement of the 1993 Constitution.   The
following order was made at (221 G - I):
“1
It is declared that ss (1) and (2) of s 44 of the Insurance Act 27 of
1943 are invalid.
In terms of s 98 (6) (a) of the Constitution it is ordered that the
declaration of invalidity made in para 1 shall invalidate the deeming
provisions of ss 44 (1) and (2) of the Insurance Act with effect from

27 April 1994, except to the extent that the operation of such
deeming provisions has resulted, before the date of this order, in
the payment of any money or the delivery of any asset which, but
for such provisions, would not otherwise have formed part of the
estate, to any creditor of the man or any beneficiary of his estate.
The matter of Brink v Kitshoff N O is remitted to the Transvaal
Provincial division to be dealt with in terms of this judgment.”
[26] The crucial order is that made in par 2.   The exception mentioned in par
2 of the order is not relevant to the present matter, as no money has been paid
or asset delivered to any creditor or beneficiary.   The question is:   what is the
effect of the declaration of invalidity of the deeming provision of s 44 (1) of the
Insurance  Act as from 27 April 1994, in the context of the case before us?
[27] In my view the correct answer to this enquiry depends on whether the
appellant, as executor, had acquired a vested right to claim the proceeds of the
policies as property of the estate before or after 27 April 1994.   If such vesting
took place before 27 April 1994, his claim is not affected by the judgment; aliter
if it vested after that date.

[28] It is clear that the appellant’s claim under s 44 (1) of the Insurance Act
could only have vested (a) after he had been appointed as executor of the
deceased estate and (b) after the sequestration had occurred in terms of s 34
of the 1965 Estates Act.   Both these events took place long after 27 April 1994.
When the appellant’s rights would have vested in the ordinary course of events,
s 44 (1) of the Insurance Act was a dead letter.   He could not claim under it.
[29] Nor can the appellant succeed under s 44 (2) of the Insurance Act.   By
virtue of the fact that the estate of the deceased had been sequestrated, he
would in any event not have succeeded under s 44 (2) of that Act.   But the point
is academic, for  -  together with ss (1)  -  ss (2) has been rendered invalid by
the order made in Brink v Kitshoff N O.   The claim must fail.
[30] In the result, I would dismiss the appeal with costs.
P J J  OLIVIER  JA