Lastly,
it is alleged that the transfer of the property in issue was done after the
death of the late Daniel Tembinkosi Dube, before an Executor had even been
appointed, and that this was a fraud on the estate and the State….,.
The
legal point taken by the applicant is that the transfer of the ...
Lastly,
it is alleged that the transfer of the property in issue was done after the
death of the late Daniel Tembinkosi Dube, before an Executor had even been
appointed, and that this was a fraud on the estate and the State….,.
The
legal point taken by the applicant is that the transfer of the property was
done after the death of the deceased and that this was in violation of the Administration
of Estates Act [Chapter 6:01] as no curator or executor had been appointed and
that the Master of the High Court had not consented to the transfer. The
deceased died on 3 July 2012 and the property was transferred on 18 July 2012,
which is after the deceased's death. It is the applicant's case that the
transfer of this property is invalid on the basis that it was done without
complying with the provisions of the Administration of Estates Act [Chapter
6:01].
This
issue, in my view, can be resolved by the interpretation accorded to section 44
of the Administration of Estates Act [Chapter 6:01]. The Master of the
High Court's Report…, also relies on this provision.
The
question which arises is whether the death of the deceased stopped the
execution of this judgement granted in favour of the first respondent before
the deceased's death.
The
answer is in the negative.
In
the case of Margaret Malawusi v Sladen Marufu & 5 Ors SC01-03, SANDURA JA…, had this to
say in dealing with the same question -
“In
my view, the section is clear and unambiguous. Subsection (1), in relevant
part, reads:
'No
person who has obtained the judgment of any court against a deceased person in
his lifetime may sue out or obtain any process in execution of any such
judgment…,'” …,.
Clearly,
what is prohibited is suing out or obtaining a writ of execution after the
death of the judgment debtor.
Subsection
(2), in relevant part, reads:
'No
person shall sue out and obtain any process in execution of any such judgment…,
without first obtaining an order from the court or some judge thereof for
the issue of such process.'…,.
Again,
subs (2) makes it clear beyond doubt that what is affected is suing out and
obtaining any process in execution of judgment after the judgment debtor's death. In
other words, what is affected is applying for and obtaining the writ of
execution after the debtor's death.
Neither
subs (1) nor subs (2) affects the continuation of the process of execution
where the writ was issued before the debtor's death as was the position in the
present case.”
In casu, the order to compel
transfer was granted on 30 August 2011, well before the deceased's death on 3
July 2012. I do not believe that the deceased's death would have affected
the process of execution where the order to compel transfer had been issued
before the deceased's death.
I
find no merit in this point relied upon by the applicant to have the transfer
of this property declared invalid.
