Barend Jacobus Du Toit NO v Errol Thomas NO

The appellant was the testamentary executor of the estate of Sebastian Jacobus Wessels who died on 24 April 2008. The second respondent, the deceased's surviving spouse, instituted maintenance proceedings in the Riversdale Magistrate's Court (maintenance court) on behalf of their minor child against the executor. The executor, who had been a family friend and the auditor to the deceased's business enterprises, initially promised to ensure maintenance but failed to pay despite repeated requests from 2008 onwards. The maintenance court ordered monthly maintenance of R10,000, a once-off payment of R720,000 for arrear maintenance, and R7,500 for an expert report under sections 16(1)(a)(i) and (ii) of the Maintenance Act 99 of 1998. The executor participated fully in the maintenance court proceedings without objecting to jurisdiction, and made partial payment for September and October 2014 before ceasing payments. He then sought to review the decision on the sole basis that the maintenance court lacked jurisdiction, arguing that claims against a deceased estate must be advanced under the Administration of Estates Act 66 of 1965, not the Maintenance Act.

• Whether a maintenance court has jurisdiction to make a maintenance order against an executor of a deceased estate under the Maintenance Act
• Whether an executor who participates in maintenance court proceedings without objecting to jurisdiction can subsequently challenge that jurisdiction
• Whether the principle of acquiescence and litis contestatio bars a subsequent jurisdictional challenge
• Whether the executor should bear costs de bonis propriis for pursuing an unconscionable challenge to jurisdiction

1. The appeal is dismissed. 2. The appellant is ordered to pay the second respondent's costs of the appeal de bonis propriis on the attorney and client scale and failing payment by the appellant such costs shall be borne by the estate of the deceased on the party and party scale.

Where an executor of a deceased estate participates fully in maintenance court proceedings without objecting to jurisdiction, and thereafter partially complies with the maintenance court's order, the executor is deemed to have acquiesced in and conferred jurisdiction upon that court pursuant to the common law principle articulated in Purser v Sales and related authorities. Such acquiescence, particularly after litis contestatio, irrevocably binds the executor to accept the court's jurisdiction and precludes any subsequent challenge to jurisdiction, even if based on a claimed error. The maintenance court has jurisdiction to make maintenance orders against executors of deceased estates under the Maintenance Act where the executor has participated without objection. An executor who pursues an unconscionable jurisdictional challenge despite accepting the validity of a minor child's maintenance claim may be ordered to pay costs de bonis propriis on the attorney and client scale.

The court observed that the executor's conduct showed no regard for the child's best interests or the prospects of success of the appeal. The court noted that the executor had made a concession that if the High Court had ordered the same amount of maintenance as the maintenance court, he would have paid it, highlighting the purely technical and obstructive nature of his challenge. The court commented that although not disputing the validity of the claim, the appellant's attitude was to burden the second respondent with a high court application instead of the more expeditious remedy provided by the Maintenance Act, which was an unduly technical stance that put both the second respondent and the estate to unnecessary costs.

This case is significant in South African law for several reasons: (1) It confirms that maintenance courts have jurisdiction to make maintenance orders against executors of deceased estates under the Maintenance Act, providing a more expeditious remedy than the Administration of Estates Act for dependants; (2) It reinforces the common law principle that participation in court proceedings without objecting to jurisdiction constitutes acquiescence that cannot later be challenged, even after litis contestatio; (3) It demonstrates the courts' willingness to impose personal costs orders (de bonis propriis) on executors who pursue unconscionable litigation contrary to the best interests of beneficiaries, particularly minor children; (4) It emphasizes that technical procedural objections that ignore substantive justice and the best interests of children will not be countenanced by the courts. The decision strengthens protections for minor children claiming maintenance from deceased estates and serves as a warning to executors against adopting obstructive technical defences where legal obligations are not genuinely disputed.