An application for a default judgment and the repossession of a motor vehicle took an unusual turn when the High Court in Mafikeng discovered that the defendant had died months before the summons was issued.
The matter prompted the Court to examine whether legal proceedings can lawfully be brought against someone who no longer has juristic existence, and whether a creditor has any obligation to establish a debtor’s status before issuing summons.
FirstRand Bank attempted to enforce an instalment sale agreement concluded with Lilian Dinekile Botsane in October 2023, under which the bank financed her purchase of a Ford Figo.
According to the bank’s particulars of claim, payments were made until early 2024. Summons was subsequently issued in August 2024.
When the matter was called, Botsane’s parents confirmed that their daughter passed away on 23 January 2024 – about one month before the alleged arrears and several months before the summons was issued.
The Court noted that FirstRand appeared unaware of Botsane’s death at the time of issuing summons or taking steps to obtain default judgment.
Issues for determination
The central issue was whether the bank could lawfully institute legal proceedings against a person who had died prior to the initiation of litigation.
The Court also considered whether the bank had acted with the necessary diligence in issuing summons without establishing the defendant’s status, particularly because no default occurred during her lifetime. This included whether any steps had been taken to contact Botsane, her employer, or her next of kin before launching proceedings.
The judgment emphasised that a person’s legal personality terminates upon death. Once an individual dies, they cease to exist in law and cannot be sued.
The Court also highlighted that a domicilium citandi et executandi – the address a contracting party selects for service – is a personal election that lapses upon death. A deceased person cannot reside at or occupy an address, and therefore service at a domicilium after death does not constitute valid service for purposes of instituting proceedings.
The Court held that the bank’s lack of knowledge could not cure the legal defect that arises when proceedings are brought against someone who, in law, no longer exists.
In addition, the Court observed that the alleged breach of contract relied upon by the bank occurred only after Botsane’s death. At the time the first non-payment was recorded at the end of February 2024, Botsane had already passed away. In these circumstances, the Court stated that the cessation of payment could not constitute a breach of contract attributable to her, because she was no longer alive to perform any obligation. Instead, the appropriate legal recourse lay against the deceased estate, represented by a duly appointed executor in terms of the Administration of Estates Act.
The High Court struck the matter from the roll. It granted FirstRand leave to institute proceedings against the deceased’s estate, if it be so advised, once a legally recognised representative – such as an executor – has been appointed. No order was made as to costs.
