This is a question which is often posed by the family of a deceased who was involved in legal proceedings before his death.

If the deceased was the Plaintiff in the action, the first thing the family must establish is the nature of the claim. If the claim was one for the recovery of damages for pain, suffering and loss of the amenities of life, or so-called “non-patrimonial damages”, the claim is not transmitted to the deceased’s estate unless the legal proceedings have reached the state of litis contestatio. These claims arise from what is known as the “actio iniuriarum” or “action for injuries”. Litis contestatio occurs when the last pleading has been filed and the pleadings are said to be “closed”. In layman’s terms, the close of pleadings occurs when the parties have filed the final pleading dealing with the allegations of fact relating to the disputes between them, the claim and the defence thereto.

If the death occurs before the close of pleadings or before the occurrence of litis contestatio and the claim is for pain and suffering and loss of the amenities of life, the claim dies with the claimant and that is that. This is expressed in the Latin maxim “actio personalis moritur cum persona” which simply means “a personal action dies with the person”. However, if the claim is in the nature of one for the recovery of the purchase price of goods sold and delivered, or for patrimonial damages (such as damage caused to the deceased’s car) the claim is unaffected by the death of the Plaintiff except to the extent that the action is stayed until an Executor has been appointed. Once the Executor is appointed, he or she steps into the shoes of the Plaintiff and the action proceeds for the benefit of the deceased’s estate.

If the claim is one arising from the actio iniuriarum and the deceased died after the close of pleadings, the action is unaffected except to the extent that the Plaintiff is replaced, as such, by the Executor, upon the Executor’s appointment.

The substitution of the deceased by the Executor is a simple and formal procedure and takes place by means of the filing of a notice.

If the Defendant in an action dies whether before or after litis contestatio, regardless of the relief sought, subject to what follows, the action is unaffected except to the extent that the deceased must be replaced as such by the Executor.

Of course, whatever the nature of the claim, and regardless of the state of the litigation, if the Plaintiff or Defendant dies the claim may be affected for practical reasons. So, for example, a person who has suffered injuries in a motor vehicle accident may have advanced a very substantial claim for medical expenses to be incurred in the future and for a loss of income to be experienced in the future. Quite obviously, once the Plaintiff dies, he can have no claim in respect of any loss which might have accrued thereafter. However, if the deceased was the Plaintiff and died either before or after litis contestatio his claim arising other than on the strength of the actio iniuriarum, that is for so-called “patrimonial loss”, is unaffected.

What is said above may be good and well but sight must not be lost of the fact that the death of a person involved in litigation as a Plaintiff or Defendant may have material practical implications. Unless the deceased was in no way involved in the events which gave rise to the cause of the action so that he would not have been obliged to give evidence in support of the claim or defence, a situation which is very rare, it may be made very difficult for the Executor to proceed with the action or defence thereto in the absence of the deceased. A simple example will suffice. Image circumstances in which Mr X, whilst driving his brand new and uninsured Mercedes Benz, is involved in an accident in which Mr Y, drunk at the time, whilst negligently driving his own car, collides with him on a lonely road in circumstances where there are no witnesses to the collision and that he damages Mr X’s car to the extent that it cannot be repaired so causing Mr X damages to the extent of R900,000.00. Now imagine that Mr X institutes an action against Mr Y for payment of the sum of R900.000.00 and that, in that action, Mr Y denies that he was drunk or negligent and pleads that the collision was caused by the negligence of Mr X. Obviously, if Mr X dies even five minutes before he must get into the witness box to give evidence in support of his case, that will be the end of the case except in extremely rare circumstances in which the maxim “res ipsa loquitur” (the facts speak for themselves) can be employed to cast the onus of disproving negligence on Mr Y.

It sometimes happens that nobody does what is necessary to procure the appointment of an Executor to a deceased person and this may leave a Plaintiff in an invidious position and unable to proceed with the litigation. Section 18 of the Administration of Estates Act provides that, where a person dies without having by Will nominated any person to be his Executor, the Master may appoint an Executor. Accordingly, it is always possible for a Plaintiff faced with a situation in which the Defendant has died and no Executor is appointed, to approach the Master and to seek the appointment of an Executor to the deceased’s estate in order to be able to proceed with the litigation.

It is recommended that, in any circumstances in which a person who is involved as Plaintiff or Defendant in legal proceedings dies, his next of kin or, if an Executor has been appointed, his Executor takes legal advice with regard to the matter.

 Author: Delia Chamberlain