Du Toit NO v Errol Thomas NO and Others

The appellant was the testamentary executor of the deceased estate of Sebastian Jacobus Wessels. The second respondent, the deceased’s surviving spouse, instituted maintenance proceedings in the Riversdale Magistrate’s Court on behalf of their minor child against the executor in his representative capacity. Despite assurances, the executor failed for years to pay maintenance. He participated fully in the maintenance court proceedings, did not object to jurisdiction, and partially complied with the maintenance order by making some payments. Thereafter, he applied to the Western Cape High Court to review and set aside the maintenance court’s decision solely on the basis that the maintenance court lacked jurisdiction to make an order against a deceased estate. The High Court dismissed the review with costs, and the executor appealed to the Supreme Court of Appeal.

The appeal was dismissed. The appellant was ordered to pay the second respondent’s costs of the appeal de bonis propriis on the attorney and client scale, failing which the costs would be borne by the deceased estate on the party and party scale.

The case affirms that executors who participate in maintenance court proceedings without objecting to jurisdiction cannot later challenge that jurisdiction on review. It reinforces the principle of waiver and acquiescence in South African procedural law and underscores the duty of executors to act in the best interests of minor children. The judgment also demonstrates the court’s willingness to make punitive costs orders de bonis propriis against executors who adopt technical, obstructive litigation strategies.