IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIV.
CASE NO. 1820/97
IN
THE MATTER BETWEEN:
JOHANNES
S. NKAMBULE N.O. APPLICANT
AND
THE
EMPLOYMENT BUREAU OF AFRICA LTD. 1ST RESPONDENT
THE
MASTER OF THE HIGH COURT 2ND RESPONDENT
THE
ATTORNEY GENERAL N.O. 3RD RESPONDENT
CORAM
: DUNN
J.
FOR
THE APPLICANT : MR.
MAZIYA
FOR
THE 1ST RESPONDENT : MR.
FLYNN
JUDGMENT
28th
NOVEMBER 1997.
The
applicant is the Executor Dative in the estate of the late Simon
Themba Shiba (the deceased) who died on the 26th July 1996. The
deceased was prior to his death, employed by Randfontein Estates
Goldmining Company Limited in the Republic of South Africa. He had
been recruited for that employment by the 1st respondent.
It
is common cause that there is in existence in the Republic of South
Africa, a Mineworkers Assurance and Benefit Scheme (the Scheme) which
is a contract between The Chamber of Mines of South Africa and The
National Union of Mine Workers, acting jointly and South African
Mutual Life
2
Assurance
Society.The deceased was a member of the scheme. Clause A.6.2 of the
Scheme provides as follows –
The
underwriter (South African Mutual Life Assurance Society) will pay
the SUM ASSURED to the EMPLOYER who will be obliged to pay the SUM
ASSURED to the person or persons nominated in writing by the MEMBER
to benefit, or failing such nomination, to the person or persons
advised in writing by the MEMBER to the EMPLOYER as being the
dependants of the MEMBER and registered as such in the records of the
EMPLOYER.
If
the MEMBER has not so nominated any person to benefit or has not so
advised the EMPLOYER of any dependants, the SUM ASSURED will be paid
to the MEMBER'S estate.
It
is common cause that the deceased nominated his two wives, Annah and
Rita as his beneficiaries under the scheme. The 1st respondent,
acting in terms of clause A.6.2., made out an advance payment of El
000.00 to each of the beneficiaries and intends paying out the
balance equally between them. The applicant now seeks an order –
Declaring
that the death benefits of the deceased which are in the possession
of the 1st respondent form part of the cash assets of the deceased's
estate and fall to be distributed in terms of the laws governing the
administration of deceased estates in Swaziland.
Directing
1st respondent to deliver the death benefits to the applicant in his
official capacity as the Executor Dative of the deceased's estate
and /
or
to the 2nd respondent.
The
submission on behalf of the applicant is that according to the law of
the Republic of South africa succession to the movable property of
the deceased falls to be determined by the law of his country of
domicile, which in this case is Swaziland See ESTATE BAKER &
OTHERS v. ESTATE BAKER & OTHERS 1908 SC VOL. 1 In Swaziland, it
was submitted, the general administration of estates is governed by
the ADMINISTRATION OF ESTATES ACT NO. 28/1902. Mr. Maziya went
through the sections of the Act relevant to the duties and powers of
an executor to obtain possession of all the assets of the deceased
for purposes of liquidation.
Mr.
Flynn, on behalf of the 1st respondent, had no problem with the legal
position as stated by Mr. Maziya. His submission was simply that the
death benefit did not form part of the assets of the estate.
There
is much to be said for Mr. Flynn's submission. The deceased had in
his lifetime, nominated
3
specific
beneficiaries in a contract which specifically spelt out the
circumstances under which the benefit would fall into his estate. The
nomination of the beneficiaries became irrevocable at the time of the
death of the deceased and thus the benefit, could not form part of
the assets of the deceased See EX PARTE MACINTOSH NO: In Re ESTATE
BARTON 1963(3) SA 51 The argument on behalf of the applicant, that
even a will by the deceased would be subject to the powers of the
Executor loses sight of the fact that a will deals with assets of the
deceased. The benefits under the scheme were from the outset,
specifically for the named beneficiaries The benefits were never the
assets of the deceased.
The
application is dismissed with costs, such costs to be paid out of the
estate of the deceased.
B.
DUNN.
JUDGE.
