Nedbank Limited v Mvula

The applicant, Nedbank Limited, entered into a written Instalment Sale Agreement on 26 August 2019 with the late Sanjini Mvula for the sale of a 2019 Toyota Hilux. Nedbank remained the owner of the vehicle by virtue of the agreement's terms and the NATIS registration certificate. The deceased died on 19 March 2023. The outstanding balance as at 10 June 2024 was R315,971.93, with arrears of R44,500.85. The respondent, Nokweshini Nomsithelo Gladys Mvula, is the surviving spouse of the deceased and was in possession and daily use of the vehicle. The initial executor, Mr G.M. Mostert, renounced his appointment on 26 January 2024, and the respondent's application to be appointed executrix was pending before the Master of the High Court. The vehicle was not insured and was the applicant's only security for the debt.

• Whether the joinder of the Master of the High Court was necessary in proceedings concerning a deceased estate.
• Whether the applicant was entitled to cancel the instalment sale agreement against the respondent in her personal capacity where no executor had been appointed.
• Whether the applicant could rely on the rei vindicatio to recover the vehicle.
• Whether the respondent's possession under section 11 of the Administration of Estates Act constituted an enforceable right against the owner's vindicatory claim.
• Whether the applicant had made out a case for interim protective relief in the form of having the vehicle placed in approved storage.

The application succeeded and an order was granted as per the attached order marked 'X', which included rectification of the engine number, confirmation of cancellation of the agreement, return of the vehicle, authorising the sheriff to attach and remove the vehicle, and attorney and client costs.

Where an instalment sale agreement expressly provides that the death of the buyer constitutes an event of default entitling the credit grantor to cancel the agreement, the credit grantor may exercise that election even before an executor has been appointed to the deceased estate. The legislated right to retain custody of deceased estate assets under section 11 of the Administration of Estates Act 66 of 1965 does not trump the owner's common law right to vindicate its property through the rei vindicatio where the possessor fails to establish an enforceable right to continue holding the asset, particularly where the asset is being used and is not being preserved.

The court observed that even if the alternative relief had not been specifically prayed for, it could in any event be considered under the prayer for further and/or alternative relief in the interest of justice. The court also noted that section 30(b) of the Administration of Estates Act and section 127 of the National Credit Act were not applicable to the matter, as the former relates to existing court orders or writs and the latter deals with voluntary surrender by a consumer, not a creditor.

This case clarifies the interplay between section 11 of the Administration of Estates Act 66 of 1965 and an owner's common law rei vindicatio. It establishes that a person holding a deceased's property under section 11 is not immunised from a vindicatory claim by the true owner, especially where the credit agreement provides for cancellation on death. It further confirms that a credit grantor can enforce its rights directly without having to wait for the appointment of an executor, where the asset is at risk of deterioration, is uninsured, and is being used contrary to the preservation purpose of section 11.