IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 30/85
In
the matter between:
RUTH
NANA HLATSHWAYO Applicant
and
AGNES
MAGAGULA Respondent
CORAM:
DUNN, J.
FOR
APPLICANT MR. SHILUBANE
FOR
RESPONDENT MR. NXUMALO
JUDGMENT
05/05/89
Dunn,
J.
The
respondent in this matter is the executrix in the estate of the late
J.S.F. Magagula. The applicant is the natural mother and legal
guardian of two minor children born out of wedlock with the late
J.S.F.Magagula. In January, 1985, the applicant (as plaintiff) issued
summons claiming payment of the sum of E9.375 as maintenance for each
of the minor children against the deceased's estate. The action was
defended and was eventually set down for trial on the 30th June, 1988
when the following order was granted by Hannah, CJ.
"By
consent it is ordered that:
(i)
the
defendant pays to the plaintiff the sum of E16,645.00.
(ii)
this
order is not to be enforced without leave of the court. Liberty to
the plaintiff
2
to
apply for such leave on seven days notice to the defendant if
satisfactory arrangements for payment
are not agreed between the parties.
(iii)
the
defendant pays the plaintiff's costs of the action.
The
parties have failed to reach agreement and by notice dated 7th March
1989 the plaintiff applied for an order in the following terms-la)
that the applicant be given leave to execute any of the immovable
property in the estate of the late Jonathan Sipho Felisizwe Magagula
in terms of the rules of court.
(b)
costs of the application.
The
application is opposed by the respondent who has set out in some
detail, arrangements she states she is making to meet the claim. The
respondent sets out that the estate does not have any cash and that
she has had to sell two properties of the estate in order to settle
most of the claims against the estate. She states "I have not
ignored the applicant's claim. I now intend to transfer the one
property of the estate into the names of the children of the deceased
with myself. This property is certain Remaining Extent of Portion 171
of Farm Dalriach measuring in extent 8,3500 heactares. This property
is bonded to Swazi Bank for an amount of E81,000.00. I have reached
an agreement with Swazi Bank that the children can take over the
property together with the loan and Swazi Bank will agree to a
sub-division of the property provided some of the proceeds are used
towards reducing the amount
3
owing
on the property. The property is big enough and two or three
sub-divisions can be made and the proceeds from their sale will
realise sufficient monies to settle the claim of the minor children."
The respondent concludes as follows-
"To
execute against the immovable property will prejudice the inheritance
of the children of the deceased who might end up losing if the
property is sold in execution. In any event the price at which the
property may be sold may not realise sufficient cash to settle the
bank's claim and the claim of the applicant."
The
applicant points out in her replying affidavit that the respondent
has not indicated how the other immovable property in the estate has
or will be dealt with. She further points out that the arrangements
suggested by the respondent are "fraught with uncertainty and
will take a long time to complete before the proceeds from the
proposed sale of the sub-divided portions are received."
The
respondent has not indicated what claims, if any. there are still
outstanding against the estate. It is, however, not disputed that
there are sufficient assets in the estate to meet the applicant's
claim.
The
respondent's proposed method of settling the claim is not acceptable
to the applicant and I can see no reason why the applicant should be
denied the relief she seeks.
There
are sufficient assets in the estate to meet the maintenance
requirements of the legitimate minor children of the deceased and the
applicant is entitled to have her claim settled before the payment of
legacies and inheritances is made from the estate. See Meyerowitz,
THE LAW AND PRACTICE OF ADMINISTRATION OF ASSETS, 5th ed.309 and the
authorities there referred to.
4
The
application is granted as prayed.
B.
DUNN
JUDGE.
