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[2018] ZAWCHC 84
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Westerhuis and Another v Westerhuis and Others (A276/2017) [2018] ZAWCHC 84 (27 June 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: A 276/2017
In
the matter between:
FREDERICK
WESTERHUIS
First
Appellant
CATHERINE
WESTERHUIS
Second
Appellant
and
JAN
LAMBERTUS
WESTERHUIS
First
Respondent
JAN
LAMBERTUS WESTERHUIS N.O.
(In his
capacity as the Executor in the
Estate
of the late John
Westerhuis)
Second
Respondent
DERICK
ALEXANDER WESTERHUIS N.O.
(In his
capacity as the Executor in the
Estate
of the late John
Westerhuis)
Third
Respondent
JAN
LAMBERTUS WESTERHUIS N.O.
(In his
capacity as the Executor in the
Estate
of the late Hendrikus
Westerhuis) Fourth
Respondent
PATRICIA
WESTERHUIS
Fifth
Respondent
MARELIZE
VAN DER
MESCHT
Sixth
Respondent
Coram
:
Erasmus, Gamble and Parker JJ.
Date
of Hearing
: 20 April 2018.
Date
of Judgment
: 27 June 2018.
JUDGMENT
DELIVERED ON WEDNESDAY 27 JUNE 2018
GAMBLE,
J:
INTRODUCTION
[1]
In the aftermath of the Second World War
there was a large migration of European refugees to various parts of
the world, including
South Africa. Amongst that number were Mr.
Hendrikus Westerhuis and his wife, Trish, her sister Ms. Jannetje
Haasnoot and her husband
who was known as “Hug” Haasnoot.
The Westerhuis and Haasnoot families first shared a communal home in
the Cape Town
suburb of Claremont and later moved to Vredehoek on the
slopes of Devil’s Peak where they lived in adjacent houses. The
Haasnoots
stayed at […]3 V. Avenue and the Westerhuis’
at number […]5. Access was gained from the one dwelling to the
other via an inter-leading gate in the backyard.
[2]
Ms. Westerhuis was the first of the elders
in the family to pass away – she succumbed to cancer in 1984 -
while “Oom
Hug” (as he was fondly known) died in 1997.
The two surviving spouses (Oom Henk and Tannie Jannie, as they were
referred
to in the trial court
,
and
to whom I shall therefore similarly refer) lived alongside each other
for many years in a harmonious relationship akin to that
of brother
and sister. Tannie Jannie was childless while Oom Henk fathered six
children - four sons (Jan, John, Derick and Frederick
a.k.a Freddie)
and two daughters (Hendrika and Carla).
[3]
The Westerhuis children grew up with their
aunt as an important figure in their lives. There were regular daily
visits to her house
during the week for coffee and sweet delicacies,
and a ritual every Sunday where tea and cake was enjoyed after the
entire clan
had attended church in the City Bowl. Religious holidays
such as Christmas and Easter were also cause for great celebration,
mostly
at number 13. As the children grew up and moved away they
maintained a close relationship with their aunt. They would contact
her
telephonically on a regular basis and often drop in for a social
visit if they were in the area. Evidently her supply of coffee
and
cake was endless.
[4]
Mrs. Haasnoot struggled financially. Her
late husband had lost his life savings with the collapse of the
Masterbond investment scheme
and she was left with a small Dutch
social pension. Mr. Westerhuis and the older sons all helped out
financially when they could.
Mrs. Haasnoot was a passionate animal
lover, enjoying daily walks with her dogs in the nearby De Waal Park
and she supplemented
her meagre income by providing day-care services
to other dog owners. She also kept cats and caged birds at her house.
[5]
By all accounts, Mrs. Haasnoot was a feisty
and fiercely independent woman until about September 2013 when she
was hospitalised
at the Somerset Hospital in Green Point after
suffering a fall at home. She seems never to have fully recovered
from that incident
and after her discharge from hospital spent long
periods of time at home convalescing in bed, the circumstances
whereof will be
dealt with more fully hereunder. On 4 November 2013,
Mrs. Haasnoot was admitted, in an emaciated condition, to Groote
Schuur Hospital
where she died on 7 November 2013 at the age of 86.
For the sake of convenience I shall hereafter refer to Mrs. Haasnoot
as “
the deceased”
or
“
Tannie
Jannie”,
and to the Westerhuis children and their spouses/partners by their
first names so as to avoid confusion.
THE
DECEASED’S WILLS
[6]
On 16 January 2013 the deceased duly
attested a last will and testament which for the sake of convenience
will hereafter be referred
to as “
the
first will”.
[1]
In terms of this will Jan and John were
appointed executors to the estate of the deceased, while the
beneficiaries were to be Hendrikus,
John, Patricia and Marelize. The
proceeds of the deceased’s home after the sale thereof were
expressly incuded as an asset
in the will.
[7]
On 10 February 2014 the Master duly issued
letters of executorship to Jan and John pursuant to their appointment
under the first
will but just three days later Freddie lodged a will
dated 17 October 2013 with the Master pursuant whereto he had been
appointed
the sole executor in the deceased’s estate. For the
sake of convenience this will be referred to as “
the
second will”.
Save for a bequest
of R50 000 to Hendrikus, the second will left the deceased’s
estate to Catherine. In terms of clause
1.2 of that will her assets
were described as –
“
Alle orige kontant, huisinhoud,
troeteldiere, voertuig en roerende bates in my huis, motorhuis en
buitekamer te Virginia laan (sic)
13, Vredehoek, Kaapstad…”
In
clause 3.1 the deceased directed that,
inter alia,
“die
volmag van enigiemand op my Deed of Transfer van my huis, behalwe
myself, verval hiermee…
”
[8]
In the result, the Master informed Jan and
John on 25 February 2014 that the first will had been revoked by the
second will and
gave them notice that they would be removed as
executors in the deceased’s estate unless they obtained an
order to the contrary
in terms of s54(1)(b)(i) of the Administration
of Estates Act, 66 of 1965.
[9]
Thus spurred into action, Jan and John
approached this court on notice of motion on 26 March 2014 seeking
various orders aimed at
declaring the first will to be the deceased’s
last will and testament, declaring the second will to be invalid and
directing
the Master to accept the first will and confirm their
appointment as co-executors in the deceased estate. Jan’s wife
Patricia
(a.k.a. Patsy) and Freddie’s first ex-wife Marelize
van der Mescht were joined as co-applicants in the matter by virtue
of
their respective interests in the benefits conferred on them in
the first will, while Freddie and his third ex-wife, Catherine
Westerhuis (who was co-habiting with Freddie notwithstanding their
prior divorce) were cited as co-respondents, the latter by virtue
of
the fact that the second will effectively left the deceased’s
entire estate to her. Freddie and Catherine opposed the
application
and contended for the validity of the second will.
PROCEEDINGS
IN THE TRIAL COURT
[10]
Initially the intention of the parties was
to request the trial court to determine the matter on the papers but
when it became apparent
that there were significant disputes of fact
on both sides, a joint decision was taken for the hearing of oral
evidence. The matter
ultimately came before Sher AJ (as he then was)
and in a thorough and detailed judgment dated 17 March 2017 the court
found that
the second will had been duly attested to by the deceased,
save for a manuscript amendment thereto which was found to have been
irregular and which was rejected by the trial court
.
As will be seen hereunder, that
amendment related to the incorporation into the second will of the
deceased’s property at
[…]3 V Avenue.
[2]
In the result the trial court directed that such immovable property
fell outside of the provisions of the second will and was to
be
subject to intestate succession.
[11]
Freddie and Catherine were dissatisfied
with the order of the court below and sought leave to appeal the
judgment. Jan, John and
the other beneficiaries under the first will
were similarly dissatisfied and sought leave to challenge the ruling
by way of a cross
appeal. Both applications were granted and the
parties are now before this court with the leave of Sher AJ. I should
point out
that there were two further fatalities along the way. The
paterfamilias
,
Mr. Hendrikus Westerhuis, died during 2015 and was unable to testify
at the hearing, while John Westerhuis (who did testify before
Sher
AJ) died in December 2017.
[12]
In the result when the matter came before
this court at the end of January 2018 it was necessary for the matter
to be postponed
to enable the executors in John’s estate to be
joined in the proceedings. Hence, the citation of Jan in two
representative
capacities in this matter - firstly as the executor in
the estate of his late father (who had an interest in the first will)
and
secondly as the co-executor with Derick (who is also now before
this court), as the nominated executors in John’s will. Jan
continues to litigate in this matter in his personal capacity
together with Patsy and Marelize, who seek to benefit under the first
will.
ORAL
EVIDENCE IN THE TRIAL COURT
[13]
It is necessary, in my view, to comment
briefly on the nature of the proceedings before Sher AJ in light of
the decision of the
parties not to call certain witnesses in those
proceedings. When the matter originally came before this court for
hearing it was
allocated to Salie-Hlophe J as an opposed motion on
the semi-urgent roll. Her Ladyship evidently came to the conclusion
that there
were significant disputes of fact which were incapable of
determination on the papers and in such circumstances the parties
were
obliged to resort to the provisions of Uniform Rule 6(5)(g)
which is to the following effect.
“
6(5)(g) Where an application cannot be
decided on affidavit the court may dismiss the application or make
such order as it deems
fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting the
generality of the aforegoing,
it may direct that oral evidence be
heard on specified issues with a view to resolving any dispute of
fact and to that end may
order any opponent to appear personally or
grant leave for such deponent or any other person to be subpoenaed to
appear and be
examined and cross- examined as a witness or it may
refer the matter to trial with appropriate directions as to pleadings
or definitions
of issues, or otherwise.”
[14]
The agreed procedure chosen by the parties
was –
“
1. …..(F)or the hearing of oral
evidence with regard to:
(a)
the validity of the execution of the
second will of the Deceased, dated 17 October 2013…;
(b)
the validity of the Deceased’s
alleged signature on the said second will;
(c)
the validity of the amendment to
paragraph 1.2 of the said second will;
(d)
the First and Second’s (sic)
Respondent’s (sic) proposed counter-application for an Order in
terms of Section 2(3) of
the Law of Succession Amendment Act, Act 43
of 1992, declaring that the amendment referred to in paragraph 1(c)
of this Order was
intended to be the Deceased’s will/amendment
and ordering the Master to accept the second will, inclusive of such
amendment,
notwithstanding that the amendment does not comply with
the prescribed formalities in that it was not witnessed.
2. That the notice of motion shall stand as a
simple summons.
3. That the answering affidavits of the First
and Second Respondents shall stand as a notice of intention to
defend.
4. That the First and Second Respondents are
granted leave to counter-apply, or to conditionally counter-apply, as
the case may
be, for an Order in terms of Section 2(3) of the Law of
Succession Amendment Act, Act 43 and 1992 declaring that the
amendment
referred to in paragraph 1(c) of this Order was intended to
be the deceased’s will/amendment and ordering the Master to
accept
the second will, inclusive of such amendment, notwithstanding
that the amendment does not comply with the prescribed formalities
in
that it was not witnessed and that such counter-application shall be
in the form of a Counter-Claim as provided for in paragraph
6 below.
5. That the Applicants’ Declaration shall
be served and filed by Friday, 31 July 2015.
6. That the First and Second Respondents’
Plea and Counterclaim (if any) shall be served and filed by Friday,
21 August 2015.
7. That the Applicants’ plea to the
Respondents’ counterclaim (if any) shall be served and filed by
Monday, 31 August
2015.
8. That the Applicants and the First and Second
Respondents shall deliver their discovery affidavits by Friday, 11
September 2015.
9. That the Applicants shall deliver their
expert notices (if any) by Friday, 25 September 2015.
10. That the First and Second Respondents shall
deliver their expert notices (if any) by Friday 9 October 2015.
11. That the further conduct of trials, as set
out in the Uniform Rules of the High Court, shall thereafter apply.
12. That only the persons who have deposed to
affidavits in this matter and the experts, for which expert notices
are filed as stated
hereinabove, may be called as witnesses.
13. That, in addition to the persons mentioned
in paragraph 12 above, the following persons may be called as
witnesses:
13.1
Sergeant Jean-Pierre Toua (the investigating officer in the inquest
into the cause of death of the Deceased) with regard to
such
investigation and the deposing of certain affidavits already filed of
record;
13.2
Constable Auxley Moleleni (sic) of the South African Police Service
with regard to and connected with the matters canvassed
by him in the
affidavit signed by him on 19 September 2014 at Cape Town.
14. That no witness, other than those mentioned
above, may be called to give evidence in this matter without the
leave of this Court
or a Judge in Chambers, which leave may be sought
only after the opposite party has been given reasonable notice of the
date and
time when such leave will be sought and such notification is
accompanied by a summary of the proposed evidence of the witness
sufficiently
to allow an assessment of the justification for allowing
the said witness to be called…..”
[15]
As can be seen, the procedure which the
parties agreed upon is really an amalgam of two of the options
available under Rule 6(5)(g).
On the one hand, a party may adopt the
approach in
Metallurgical
[3]
by precisely defining the issues to be traversed in oral evidence
while limiting the witnesses who will testify to those who have
already deposed to affidavits, unless the court (upon application)
directs otherwise. In such event the cause of action and legal
issues
will be determined from the affidavits already filed.
[16]
On the other hand, a party can simply refer
the application to trial and make provision for the filing of
pleadings, as if the founding
papers are no more than a simple
summons setting out the cause of action in brief terms.
[4]
In such circumstances, one would then usually continue with the
matter as if it were an ordinary trial with the pleadings determining
the issues and such witnesses as may be required to provide the
evidence to be called in due course. The usual rules relating to
pre-trial procedures would then also apply and it would not be
necessary to legislate for discovery, expert notices and the like.
[17]
It seems to me that what the parties here
had in mind was to specifically limit the number of witnesses to
testify at a trial in
which the issues were yet to be determined
through the filing of pleadings. That approach begs the question as
to what would happen
if the issues traversed in the pleadings then
lead to the necessity for the calling of other witnesses. Why, in
such circumstances,
should a party’s right to call witnesses in
support of its case be limited by the disclosure in advance of the
witness’
testimony and the express authorization of a judge?
[18]
But, to the extent that Rule 6(5)(g) gives
the court a wide discretion to “
make
such order as it deems fit with a view ensuring a just and
expeditious decision”,
it is
arguable that that is just what the parties sought to do. In any
event, what is clear from the agreed procedure is that the
only
evidence which would be admissible for adjudication by the trial
court was that which had been delivered
viva
voce
and subjected to
cross-examination. While an affidavit already filed of record could
undoubtedly be used for purposes of attacking
the credibility or
reliability of a witness under cross-examination, it is clear that
the parties contemplated that a litigant
was not entitled to rely on
such affidavit evidence in the absence of the deponent being called
to testify. In argument before
us, Mr. Walter for the appellants,
accepted that no reliance could be placed on evidence contained in
any of the affidavits before
the trial court, unless the deponents to
such affidavits had given
viva voce
evidence.
THE
ISSUES BEFORE THE TRIAL COURT
[19]
Sher AJ delivered a detailed judgment and
dealt comprehensively with all of the material facts and
circumstances. It is therefore
not necessary for purposes of this
judgment to recite the facts in their minutiae. Aside from the issues
defined by the parties
in para 1 of the order of referral to oral
evidence, the declaration, the plea and counterclaim fall to be
considered as regards
defining the substance of the
lis.
As I understand it the issues were as
follows:
·
The parties were
ad
idem
that the first will complies in
all respects with the material provisions of the Wills Act, 7 of 1953
(“
the Act’
).
·
Consequently, if the second will is
found to be invalid and of no force and effect, the deceased’s
estate falls to be administered
in accordance with the provisions of
the first will by Jan (and a further executor in the place of John,
who has since died).
·
The second will contains various
signatures which are alleged to be those of the deceased, as well as
two witnesses, evidently police
officers who were on duty at Cape
Town Central Police Station on 17 October 2013, the day that the will
was allegedly executed
by the deceased.
·
The respondents contend that the
signature on the second will, which is alleged to be that of the
deceased, is in fact not hers
and rely on the evidence of a
handwriting expert in that regard.
·
There is a manuscript alteration to
clause 1.2 of the second will which is accompanied by only one
signature – allegedly that
of the deceased – which was
not countersigned by any of the police witnesses.
·
It is common cause that the absence
of the signatures of the 2 police witnesses verifying the alteration
of clause 1.2 renders the
alteration ineffective pursuant to the
provisions of s2(1) of the Act.
·
Unless the court exercises its
discretion under s2(3) of the Act and orders the Master to accept the
alteration to clause 1.2, the
alteration is of no force and effect.
·
The respondents’ case before
the trial court was not that the second will was executed while the
deceased was of unsound mind
or subjected to duress or undue
influence.
[20]
In his judgment Sher AJ found that the
alteration to clause 1.2 was of no force and effect because it had
not been properly witnessed.
The trial court was not convinced that
the intention of the deceased in relation to the property at […]3
V Avenue had conclusively
been established and in the circumstances,
the court refused to exercise its discretion under s2(3) to condone
the non-compliance
with the provisions of the Act. The court was,
nevertheless, satisfied that the second will was otherwise properly
executed and
valid
sans
the
amendment. In the result, Sher AJ held that the deceased’s
property at […]3 V Avenue had not been disposed of in
the
second will and that it fell to be disposed of in accordance with
laws relating to intestate succession. The focus of the case
in the
trial court was really what transpired at the Cape Town Police
Station when the second will was signed. But before dealing
with that
event it is necessary to contextualize it.
BACKGROUND
FACTS
[21]
Much evidence was led before the
court
a quo
about
the facts and circumstances which preceded the signing of the second
will and as much was said about the relationship between
the
Westerhuis siblings, their spouses and the older generation in the
extended family. As these matters go there was much bile
spilled
between the parties, both in the witness box and beyond, and it is
clear that there were essentially two camps in this
case. I shall
attempt to summarise just the salient points.
[22]
As I have said, there was an “
open
door
” arrangement between no’s
[…]3 and […]5 V Avenue. Accordingly, when Jan or John
or one of the sisters
visited their father they might pop in to their
aunt’s house for coffee and a chat. Use was made of the back
garden gate
and they all knew where the key to the security gate for
access through the kitchen door was hidden. Those siblings evidently
also
made regular contact with their aunt telephonically who seems to
have been fond of them all. Jan and John and their spouses lived
in
the northern suburbs of the Peninsula but it was no inconvenience for
any of them to travel to the City Bowl to see Tannie Jannie.
[23]
Freddie, however, was shunned by his older
siblings. He had a dubious past involving some dodgy deals (he was
said, for example,
to have misled even his father in relation to
procuring his signature on a suretyship) and had done time for
sexually molesting
a daughter of a previous marriage. And so, while
Jan and John were regular visitors at their father’s home they
had no contact
with Freddie, either at the family home or at the farm
which he occupied near Montague. This notwithstanding, it seems
Hendrikus
Westerhuis still retained a soft spot for his youngest
child and was accommodating and trusting of Freddie, much to the
chagrin
of Jan, John and the others. Freddie has had three marriages,
the most recent of them to Catherine, the second applicant herein.
As
their respective dates of birth reflect, in October 2013 Freddie
would have been 45 years of age, while Catherine was then just
21.
[24]
During 2013, Freddie had had no contact
with Jan or John – they were to all intents estranged from each
other. Jan testified
that on Saturday 7 September 2013 after he heard
that Tannie Jannie had a bad fall at her home and was taken to
Somerset Hospital
for treatment, he and Patsy immediately went to
visit her. He further testified that when he and Patsy went back to
visit Tannie
Jannie the following day, he saw Freddie walking into
the hospital and refused to accompany Patsy to the patient’s
bedside.
Jan went in later and noted that his aunt was in a serious
condition. Upon enquiry, Jan said, one of the nursing staff told him
that Tannie Jannie was in a bad way and would be in hospital for a
while as she needed physiotherapy and the like before she could
be
discharged.
[25]
Jan stated that he was most surprised to
hear from his father late on Sunday 8 September 2013 that his aunt
had been discharged
from hospital prematurely and shortly after their
visit that day. He was even more surprised when he found out that
Freddie had
managed her discharge, seemingly in the face of medical
advice to the contrary. When Jan and Patsy then went to visit Tannie
Jannie
at home thereafter they were dumb-founded to find that Freddie
and Catherine had moved in with her. Jan said that upon enquiry the
deceased told him Freddie had sold up his business in the Boland and
that he and Catherine (whom she erroneously referred to as
“
sy
vroutjie”
, believing they were
still married) needed a place to stay for a few days. Jan was highly
suspicious of this turn of events given
his innate mistrust of
Freddie.
[26]
On 9 September 2013, Patsy (a primary
school teacher) went to visit Tannie Jannie alone in the afternoon
after school had closed.
She testified that the deceased was mobile
and in pain but seemed to be her feisty old self and went on to say
that the deceased
retrieved, from underneath a mattress in one of the
bedrooms, a bag containing the original title deeds to the property
and the
original of the first will. Patsy said that the deceased told
her to take the documents, make copies thereof and to return a copy
to her. The deceased further instructed Patsy to give a copy of the
will to each person named therein and to keep the originals
because
Freddie “
had moved in with the
child”
- obviously a reference to
Catherine. Patsy said that when she took the documents to the Parow
police station to be certified, the
police official inadvertently
stamped the original will as if it were a copy and so she wrote the
word ”
OORSPRONKLIKE
”
on it.
[27]
Two days later Freddie’s former wife
Marelize van der Mescht visited the deceased who told her that she
had given the original
will and title deeds to Patsy for safekeeping
and had instructed her to make copies thereof since “
she
did not trust any Westerhuis”.
Marelize
testified that she also came to the conclusion that the deceased’s
condition was improving.
[28]
Patsy produced her diary which confirmed
her evidence that she had visited Tannie Jannie on several occasions
between 9 September
and Saturday, 19 October 2013. She also testified
that she returned copies of the title deeds and will to the deceased
on 12 September
2013. She went on to say that during the course of a
telephone conversation on Sunday, 20 October 2013 the deceased
suddenly accused
her of taking her property and of stealing from her.
Patsy assumed that this was a reference to the title deeds and will.
She said
that she was most taken aback by these accusations and
arranged to visit her aunt later that evening. However, during that
visit
the deceased made no mention of earlier accusations and carried
on as if nothing had happened at all.
[29]
John testified that he also visited his
aunt that Sunday morning, 20
th
October 2013, together with his girlfriend and her four-year-old
child. The parties sat outside the back door drinking coffee in
the
shade of a lean-to when he looked up and noticed what appeared to be
a video camera mounted directly above the door. He was
curious and
pointed it out to his aunt who initially appeared oblivious thereto
but later told him that Freddie had installed an
alarm system which
was connected to a red light which went on in his bedroom. The
deceased also told John that Freddie had said
that he was trying to
catch an unknown person who was using the outside toilet on the
property.
[30]
There was much testimony on this issue but
it is not necessary to go into detail thereon. Suffice it to say that
Freddie had effectively
bugged the house using video and audio
equipment in order to monitor what was being said, by the deceased in
particular. Reams
of transcripts were produced at the trial relating
to what was allegedly said inside no. […]3 over the following
number
of weeks. These were not proved in evidence by Freddie or
Catherine and are accordingly inadmissible hearsay, save for a
concise
portion thereof which was put to Jan in cross examination
(and to which he was therefore able to respond) as regards his own
utterances
in the house. The transcript of any remarks on the part of
Tannie Jannie, Freddie and/or Catherine remain inadmissible hearsay
[31]
John testified that after the discovery of
the bugging device there was an argument with Freddie, during which
he raised concerns
about Freddie’s paedophilia and the
possibility that the hidden camera’s might be used to spy on
his young daughter
when they visited their aunt. These accusations
were very upsetting for Tannie Jannie who responded hysterically. She
complained
that John did not know what was really happening with her
and intimated her concerns that Freddie and Catherine were going to
sell
her house and either put her in an old age home, or worse still,
on the street.
[32]
John testified that he asked his aunt
whether she had signed any documents recently to which she replied in
the negative, saying
that she couldn’t sign anything because
her hand was too stiff. This statement raises a red flag given that
the second will
had allegedly been executed just a few days before,
together with a pair of deeds of sale in respect of no. […]3.
The evidence
suggests that the deceased had no recollection of these
events.
[33]
John
was concerned about his aunt’s welfare while seemingly under
the control of Freddie and Catherine and took it upon himself
to draw
up a series of documents intended to protect her and her estate
against what he considered to be undue influence and maltreatment
of
her by Freddie. These documents were to be signed by his aunt and
were intended to be public declarations by her to the effect
that -
·
No one was to prevent her having
contact with her family;
·
She was not to be declared senile by
any person without the intervention of a doctor and the intercession
of her chosen executors
(Jan and John);
·
She was not to sign any legal
documents in the absence of her chosen executors, who were required
to counter-sign same;
·
Any power of attorney signed by her
would not be of any force and effect unless witnessed and
counter-signed by the chosen executors;
·
She wanted to stay at no.[…]3
until her death and did not want to be transferred to an old age
home;
·
She authorized her executors to have
free access to her house to look after her and her pets;
·
Any persons residing in no. […]3
at the time of her death would be required to vacate the premises;
and
·
John would be allowed to rent the
garage at no. […]3 in exchange for a 150kg bag of bird seed
(or the cash value thereof)
per month.
[34]
John further testified that on Monday 21
October 2013, when he took the documents to the deceased’s
house to be signed, he
was unable to gain access through the rear
security gate because a removable lock had been inserted therein. He
left and when he
came back a little while later he surprisingly found
the house open and unattended. He went in and gave the documents to
his aunt,
asking her to read them and sign if she was happy with the
contents. He then left.
[35]
I
n the result, the documents were never
signed by Tannie Jannie but they somewhat predictably landed up in
the possession of Freddie
who subsequently took active steps to
preclude John and Jan from gaining access to their aunt’s house
by taking out a domestic
violence interdict at the local magistrates’
court. This was precipitated by an event on 23 October 2013 when
John, Jan and
their father were unable to gain access via their
customary route through the back security gate. An acrimonious
altercation ensued
between John and Freddie during which mutual
filial recriminations were exchanged and threats of physical violence
made by Jan.
Freddie was accused,
inter
alia
, of keeping Tannie Jannie hostage
in her own home, as if she was in a prison. During this time the
deceased emerged on crutches,
was described as ghostly white and had
to support herself on a cupboard. Her physical condition was the
cause of great concern
for John and the others but they were unable
to come to their aunt’s assistance having been locked out of
the premises.
[36]
Patsy testified that she saw Tannie Jannie
sometime towards the end of October 2013 when Freddie eventually gave
her access to the
house after she had threatened to call the police
if he did not open up. Patsy visited the house again on Sunday, 3
November 2013
and reported that the deceased’s condition was
poorly. She had evidently complained of stomach pain and nausea and
said that
she had been dosed with a large quantity of pills. Freddie
rejected a suggestion that the deceased should be examined by Patsy’s
general practitioner, saying that he would call a doctor of his
choice if the need arose.
[37]
Patsy’s visit on Sunday, 3 November
2013 was the last face-to-face contact that anyone from the
Westerhuis family (other than
Freddie) had with Tannie Jannie. On
Monday 4 November 2013, Patsy spoke telephonically with her and said
that the deceased told
her that she was all right but very tired. As
appears from the hospital notes, Tannie Jannie was anything but well
at that time.
Attempts to reach her telephonically on 5 and 7
November 2013 were unsuccessful because the phone remained unanswered
[38]
On 8 November 2013 Jan was informed by his
sister Carla that Freddie had phoned her and reported that Tannie
Jannie had died the
previous day. The family members were distraught
about this turn of events and the various siblings hastened to the
house at no.
[…]3. On the way the assistance of a local police
colonel was enlisted as the parties anticipated difficulty in
obtaining
access to the house. On arrival they were met with a scene
which can only be described as ghoulish and bizarre.
[39]
The front gate was locked, Freddie was on
the patio with others but refused to open the gates and provide
access to his siblings
and their spouses. Two recently laminated
notices had been put up at the front gate. One of them showed a
photograph of the deceased
with her dogs in the park and contained a
short obituary to Tannie Jannie. It recorded that she had died on 7
November 2013 and
that any persons wishing to attend her funeral were
to RSVP before 11 November 2013 in light of the fact that the funeral
date
was yet to be finalised. The document was given under the hand
of the “
Executor of Tante
Jannetjie
Haasnoot
Estate: Frederick Westerhuis
”,
and a telephone number and banking details were conveniently
furnished for those wishing to contribute towards the cost
of the
funeral.
[40]
The second notice was more ominous, and
read as follows –
“
WARNING
Private Property.
Do not enter.
No fighting allowed.
Respect Tante Jannie’s last wishes.
All the property now belongs to
C.R.E.Westerhuis.
[i.e.Catherine].
Old
will was officially cancelled. New will applies and protection orders
have been issued. SAPS Cape Town knows all about this
and will patrol
regularly as well ready (sic) and on speed dial. Please adhere to
this notice so that Tante Jannie can be respectfully
laid to rest.
Executor of Estate: F.Westerhuis.”
[41]
After a while the police colonel was
permitted to enter the property and he later emerged with a copy of
the second will which he
handed to the family. From this the other
siblings were able to see that their worst nightmare had become a
reality: that the deceased
had made a will on 17 October 2013 in
which Freddie was appointed the executor of her estate, all of which
had been left to Catherine.
Emotions ran high in Virginia Avenue with
threats of violence being uttered. But what really seems to have
peeved the other siblings
most was that they had not been told of
Tannie Jannie’s hospitalization: they all had been led to
believe that she had died
at home.
[42]
The parties (
sans
Freddie and Catherine) then rushed through to Groote Schuur Hospital
expecting to find the body of their recently departed relative
still
in the hospital mortuary. To their amazement they discovered that the
body had been spirited away by a local undertaker the
night before.
And so the parties hastened to the funeral parlour where there was
yet another twist in the tale: the family were
informed that
preparations were being made for an imminent cremation of their
beloved aunt. An attorney was contacted and the cremation
was put on
hold while an autopsy was conducted. Later, Patsy and her daughter
laid a charge of murder but nothing became of that.
The deceased was
eventually buried alongside her late husband, in accordance with her
stipulated wishes, some months later after
a court order for the
release of her body was granted.
[43]
The Groote Schuur hospital notes show that
the deceased was admitted at around midnight on 4-5 November 2013.
According to the history
furnished to the medical staff by Freddie
his aunt had been vomiting for some four days before her admission
and on examination
she presented as “
unwell
”,
dehydrated and with extremely low blood pressure. There was
tenderness over the abdomen, which was distended, and the following
day staff noted the presence of a pressure sore in the area of her
lower back and buttocks. The clinical notes made on 5 November
2013
record that the patient had been bed-bound for two months and that
there was excessive weight loss and dehydration. The records
reflect
that she was certified dead at 17h30 on 7 November 2013.
[44]
A post-mortem examination was conducted on
the body on 14 November 2013 during which the pathologist recorded
findings of atrophy
of the large bowel and liver, features which he
said could be consistent with starvation. However, the pathologist
declared that
he was unable to determine the cause of death on the
basis of the post-mortem examination alone.
[45]
So much for the history of a grisly tale
which has all the hallmarks of a Hitchcock thriller, but which is
sadly all true. I turn
then to examine the validity of the second
will in the context of the law usefully set out by Sher AJ in his
judgment.
THE
APPLICABLE LEGAL PRINCIPLES
[46]
The point of departure is the Act which
prescribes the formalities for a valid will. In terms of s2(1)(a)
thereof the will of Tannie
Jannie was to have been signed by her (or
by some other person in her presence and under her direction) at the
end of the document.
That signature must have been witnessed by 2 or
more competent persons who must have witnessed the testator placing
her signature
on the document in their presence with each such
witness being present at that time. Thereafter, the witnesses were
required to
attest and sign the will in the presence of the testator
and each other, and since the will consists of more than one page,
the
testator and the witnesses were each required to sign at the foot
of each page, once again in the presence of each other and the
testator.
[47]
In terms of s2(1)(b) of the Act, no
amendment to a will is valid unless such amendment has been
identified by the testator through
her signature and similarly
witnessed by the witnesses thereto, all of whom must once again be in
one another’s presence
when the alteration is made and
attested. In terms of s2(2) of the Act, any amendment made in a will
shall be presumed to have
been made after the execution of the will,
unless the contrary is proved.
[48]
Under s2(3) of the Act the High Court is
given the power to condone any non-compliance with the formalities of
s2(1).
“
S2(3) If a court is satisfied that a
document or the amendment of a document drafted or executed by a
person who has died since
the drafting or execution thereof, was
intended to be his will or an amendment of his will, the court shall
order the Master to
accept that document, or that document as
amended, for the purposes of the Administration of Estates Act, 1965
(Act No 66 of 1965),
as a will, although it does not comply with all
the formalities for the execution or amendment of wills referred to
in subsection
(1).”
[49]
The subsection has been the subject of much
litigation from which the following guiding principles emerge. The
statutory formalities
relating to the execution of a will generally
are aimed, on the one hand, at achieving certainty in relation to the
testator’s
final instruction as to the disposal of her estate
[5]
,
and on the other hand to preclude fraud.
[6]
Where that “
final instruction
”
does not meet the requisite statutory precepts the court is given a
discretion to condone non-compliance therewith. In doing
so, the
court will interpret s2(3) strictly, in particular, because if the
court is persuaded to make a positive finding to condone,
the
subsection has peremptory consequences
[7]
.
Accordingly, once the court is satisfied that there is a condonable
formal defect in attestation it has no option but to refer
the matter
to the Master for acceptance of the document as a valid will.
[8]
[50]
The Supreme Court of Appeal has stated
repeatedly that, when applying s2(3), the real question is whether
the deceased intended
the document (or any amendment) thereto to be
her will. And so, the court is required primarily to ascertain
whether at the time
of drafting or executing the document, or any
amendment thereto, as the case may be, the necessary intention on the
part of the
testator has been established. Such an enquiry entails an
examination of the document in the context of the surrounding facts
and
circumstances
[9]
and the party so alleging must show unequivocally that the intention
existed concurrently with the execution or drafting of the
document.
However, before a court can be persuaded to exercise its discretion
under s2(3) it must be satisfied that the document
has been duly
signed by the testator (or someone acting on her express directions).
THE
EVIDENCE PRESENTED RELEVANT TO THE ATTESTATION OF THE SECOND WILL
[51]
Neither of the appellants testified before
the trial court and, as I have already said, on appeal before us Mr.
Walther for the
appellants accepted, correctly in my view, that the
affidavits deposed to by Freddie and Catherine in the application
proceedings
could not be considered as part of the factual matrix in
the matter. The failure of the appellants to testify in the trial
court
in circumstances where they were available to be called and
where their evidence was highly material entitles an adverse
inference
to be drawn against them that they were concerned that such
evidence might lead to facts prejudicial to their case being
exposed.
[10]
[52]
The appellants’ case relied heavily
on the evidence of a police officer attached to the uniform branch of
the Cape Town Central
Police Station, Const. Michael Nohako, who was
on duty at the Community Service Centre (the charge office of old) on
the day that
the deceased allegedly arrived to sign the second will,
17 October 2013, and who allegedly oversaw the signing of the second
will
in the presence of the appellants and the deceased, and a Const.
Ndlokweni who was later called over by Nohako to sign as the second
witness. Ndlokweni was not called to testify.
[53]
Subsequent to the alleged attestation of
the second will, it is claimed by the appellants that the deceased
executed a codicil to
that will on 4 November 2013 at her house. It
will be recalled that later in that day Tannie Jannie was admitted to
Groote Schuur
Hospital and the evidence of Const. Oxley Mdleleni was
presented in an attempt to persuade the trial court regarding the
validity
of the codicil and two powers of attorney allegedly signed
in his presence by a very ill Tannie Jannie who was confined to bed
at the time.
[11]
In addition to the police evidence, the appellants called a certain
Ms. Cheryl Hilse whose dogs the deceased had looked after for
a
number of years. Her evidence related to the mental condition of
Tannie Jannie in the months preceding her death.
[54]
Finally, there is the evidence of Mr. Basie
Potgieter, a Cape Town attorney specializing in conveyancing, who was
actually the first
witness called by the appellants. He testified
regarding 2 deeds of sale presented to him by Freddie and Catherine
in mid-October
2013 in terms whereof the deceased purported to sell
her house to Catherine, firstly for R500 000 and just two days
later
for R1,5m, in circumstances where no money would effectively
have changed hands. I shall go into these transactions in a little
more detail later. Suffice it to say at this stage that Potgieter
testified that he smelt a rat at the time and took it upon himself
to
visit Tannie Jannie on his way home from work one day so as to
satisfy himself as to the integrity of the second deed of sale.
During that visit, said Potgieter, the deceased signed the second
deed of sale in respect of her property in his presence, and
he went
on to testify regarding her mental state and her apparent intentions
regarding the disposal of her immovable property.
[55]
The evidence presented on behalf of the
respondents can be classified in three broad categories. Firstly,
there was the opinion
evidence of a handwriting expert, Dr Cecilia
Rosa, which cast serious doubt over the integrity of the signatures
attributed to
Tannie Jannie in the second will. Then there was the
evidence of a detective stationed at the Cape Town Central Police
Station,
Sgt. Jean-Pierre Toua, who was tasked with investigating the
death of the deceased with a view to either a potential prosecution
or an inquest, who interviewed Nohako in the process and took a
statement from him in July 2014 regarding the events which transpired
in the Community Service Centre on 17 October 2013. Finally, the
respondents presented the evidence of the various siblings and
spouses who had brought the application attacking the validity of the
second will (Jan, John, Patsy and Marelize), to whom I shall
refer
collectively as “
the siblings
”.
Freddie, of course, does not fall under this rubric.
THE
EVIDENCE OF DR ROSA
[56]
By far the bulk of the record of
proceedings before the trial court is taken up with the evidence of
Dr Rosa. In his judgment, Sher
AJ commented favourably on Dr Rosa’s
level of expertise and on the persuasiveness of her opinion. I can do
no better than
to quote directly from para 18 of the judgment.
“
[18]…[Dr Rosa] impressed me as a
careful witness and a professional who had attempted, to the best of
her ability, to analyse
various handwriting specimens and the
documents on which they appeared, and she was both consistent in her
testimony at the same
time, fair in her concessions. There is no
reason for me to believe, on the evidence before me, that Dr Rosa
deliberately attempted
in any way to put up a false case on behalf of
the plaintiffs and I was unable to discern any irrationality or
illogicality between
her findings and the scientific methods she
adopted to arrive at them. She set out a number of reasons why, based
on accepted principles
of handwriting analysis, she had concluded
that the signature of the late Mrs. Haasnoot on the two (original)
second wills and
on the powers of attorney were inconsistent and why
she believed they had not been made by Mrs. Haasnoot. In this regard
she compared
the questioned signatures with those of the signatures
and documents previously signed by Mrs. Haasnoot and illustrated the
variances
therein by means of an impressive photographic
presentation…. It was not suggested to Dr Rosa during
cross-examination that
what she described and what she saw was not
so.”
[57]
Why then was Dr Rosa’s evidence not
conclusive in relation to the invalidity of the second will? Sher AJ
explained his reluctance
in implicitly relying on the expert
testimony as follows.
“
[18]…[T]he principal difficulty
which arises from her evidence, as was foreshadowed by defendant’s
counsel during her
cross-examination, is that her findings stand in
stark and direct contradiction to the evidence which was tendered
on behalf of the defendants. In this
regard the defendants called a number of witnesses…who
testified that the signatures
on a number of the questioned
documents, including the two duplicate second wills as well as the
codicil and the powers of attorney,
had in fact been made by Mrs.
Haasnoot in their presence. As such, Dr Rosa quite properly and
fairly conceded that her findings
would inevitably have to yield to
such evidence, if it was accepted by the court as being credible and
reliable. But, although
this means that it is not necessary for me to
traverse the evidence of Dr Rosa in any great measure, it does not
mean that it necessarily
has no value at all in the context of the
evidence as a whole and the issues that I am called upon to decide. I
will revert to
this aspect later.”
THE
ALLEGED SIGNING OF THE SECOND WILL
[58]
In having regard to the background and
surrounding circumstances relating to the execution of the second
will, Sher AJ relied extensively
on an affidavit made by Freddie in
the motion proceedings. This the trial judge was not permitted to do
given that the matter ultimately
proceeded by way of action. At the
trial stage the affidavits constituted inadmissible hearsay and the
only reference that could
notionally be made to such affidavit
evidence was, either if there was an agreement in that regard (which
there was not), or if
a deponent to an affidavit took the witness
stand and gave
viva voce
evidence.
In those circumstances, a witness could be confronted with an
inconsistency between the evidence given in the witness
box and the
evidence contained in the affidavit but the affidavit evidence
remains hearsay.
[59]
In the circumstances, I am of the view that
reliance upon Freddie’s affidavit filed in the motion
proceedings constituted
a misdirection on the part of the trial
court. Similarly, the trial court erred and misdirected itself in
relying on the contents
of an affidavit made by Freddie in the
application for the domestic violence interdict in the Cape Town
Magistrates’ Court.
Both such affidavits contained
inadmissible hearsay. In the result there was no evidence before the
trial court as to who
drafted the second will, on whose instructions
it was drafted and under what circumstances this occurred. The
absence of such evidence
has serious implications for the appellants’
purported version of events and, in particular, their duty to
persuade the court
of the foundation for acceptance of the second
will.
[12]
[60]
As to what transpired at the Cape Town
Central Police Station on 17 October 2013, the trial court heard only
the
viva voce
evidence
of Nohako. He described how an elderly woman was brought into the
charge office by a young woman and an older man whom
he identified in
court as Freddie. Nohako said he identified the old woman as Mrs.
Haasnoot through her identity document which
was shown to him. He
said he was told that Mrs. Haasnoot was there to sign her will which
had been drafted for her in Afrikaans.
This was a language with which
he was not familiar and so Freddie proceeded to translate the
document for him. The constable testified
about a “
sort
of a mistake”
which was noted in
the document which Freddie corrected in manuscript and which he asked
the old woman to “
paraphrase
”
(sic). After Freddie had read the rest of the document, he said the
old woman signed as did he (Nohako) and his colleague
Ndlokweni.
[61]
Nohako’s evidence-in-chief was fairly
superficial and sketchy and it was only during cross-examination that
a clearer picture
emerged as to what had happened that day. It
transpired that this was the first time that Nohako had been called
upon to witness
a will in the course of his employment and it was
obvious that his knowledge of what was required of him was very
limited. He said,
for example, that he understood that all persons
identified as beneficiaries in the will were also required to sign
it. It would
appear that he also considered that it was permissible
for the other witness (Ndlokweni) to sign the will without witnessing
the
testator or his colleague signing in each other’s presence.
[62]
Under cross-examination Nohako described
how after Freddie and the younger woman entered the charge office
with the old woman, Freddie
produced a type-written document (in
Afrikaans) and told the constable that the old woman was there to
sign her will. Because Nohako
did not understand Afrikaans he asked
Freddie to translate it for him in the presence of the old woman,
which he duly did. Nohako
of course could not vouch for the accuracy
of the translation. In the process of so translating, said Nohako,
Freddie picked up
a mistake in the document which he altered by
making a deletion with a solid line through a word and by inserting
the phrase “
erf 978”
in
manuscript at that point in the document. He heard Freddie instruct
the deceased to sign the alteration but it is apparent from
the
evidence that Nohako did not actually see the deceased do so. In
relation to the signature of the will at the foot of the page,
Nohako
was adamant that he saw the deceased append this in his presence.
Thereafter, said Nohako, he signed at the foot of the
page but not
adjacent to the manuscript alteration, believing that his signature
at the foot of the page would suffice. Thereafter,
he said, he called
Ndlokweni over and saw to it that he too witnessed the document at
the foot of each page. Given that the latter
did not testify, we do
not know whether (or how) he identified the purported signature of
the testator.
[63]
At the conclusion of his evidence, Sher AJ
questioned Nohako extensively for purposes of clarification. In the
process Mr. Walther
objected to the court’s questions
suggesting that it was a repetition of earlier questions. The court
was cautioned by counsel
that it may be descending into the arena.
The objections raised by Mr. Walther bordered on contempt of court
but in any event,
I do not see anything improper or unreasonable
about the way in which the trial judge grappled with the issues.
Indeed Mr. Walther’s
utterances remind one of the adage that an
objection is akin to the strangled cry of a lawyer as the truth is
about to enter the
court room.
[64]
In his judgment, Sher AJ noted the more
obvious problems with Nohako’s evidence. Principle among these
was the fact that ultimately
it was established that he may well not
have been able to see the deceased actually signing the document
because of the layout
of the charge office. It was pointed out that
the old woman was seated at a lower level to the counter at which
Nohako was otherwise
serving the public and that his vision of the
surface upon which the will might have been signed was obscured.
Further, while the
constable had testified earlier that that he saw
the deceased counter-signing the manuscript alteration to the will it
then transpired
that Freddie had taken the document over to her and
that he was standing between the deceased and Nohako. Nohako also
said that
he could not recall noting whether the deceased had
actually read what she was signing at the time; most certainly, said
Nohako,
Tannie Jannie did not read the alteration before allegedly
appending her signature to it.
[65]
The effect of the manuscript alteration was
to provide in the second will for the testamentary disposal of no.
[…]3 V Avenue.
I shall refer later to the manner in which the
property was dealt with in the deeds of sale shown to Potgieter by
Freddie which
seemingly rendered it unnecessary for the deceased to
include an reference to the house in her will. In his judgment Sher
AJ came
to certain conclusions regarding the intention of Tannie
Jannie when she allegedly accompanied Freddie to the police station
on
17 October 2013.
“
[76] In my view, the evidence shows
unequivocally that at the time when Mrs. Haasnoot walked into the
police station with Frederick
and Catherine, it was not her intention
to execute a will in terms of which the immovable property was to be
left to either one
of them. To construe such an intention would be
inconsistent with the fact that she entered into two sale agreements,
one before
and one after she made the will as well as an
acknowledgement of debt in respect of such sale agreements, and this
is why the immovable
property was not included in the typed document
which was prepared by Frederick and which was presented to the police
for signature.”
[66]
That conclusion, however, is fundamentally
flawed to the extent that it seeks to rely on the affidavit evidence
deposed to by Freddie.
Similarly, the trial judge relied on the
affidavit of Catherine in drawing conclusions about the deceased’s
intentions regarding
the property and her instructions to Frederick
and Catherine. Simply put, the trial court was not entitled to have
regard to those
affidavits.
THE
EVIDENCE OF D/SGT TOUA
[67]
But there is a
far more fundamental problem arising from the the trial court’s
failure to deal with all of the evidence before
it. D/Sgt. Toua, an
experienced policeman with more than 10 years’ service at the
time, testified that in 2013 he was the
officer at Cape Town Central
responsible for the investigative work relating to judicial inquests.
Toua testified that late on
the night of 8 November 2013 (and it will
be recalled that this was the time when the siblings had discovered
that the deceased
was about to be cremated), he was approached by two
of the siblings and asked to urgently open a docket to investigate
the demise
of their aunt. He did so and thereafter conducted the
necessary investigations and interviewed the relevant witnesses.
[68]
In the process of interviewing Nohako, Toua
asked the young constable what had transpired in the charge office on
17 October 2013.
He testified that Nohako looked at him in
embarrassment and simply said “
Sorry
Sarge, I can’t remember.”
Toua said that he also interviewed Ndlokweni at that time and that he
too had no recollection of the execution of the deceased’s
will. Toua went on to say that the two constables were away on
a course for about a fortnight and that he prepared their
affidavits
for the inquest docket in the interim.
[69]
After their return, and on 24 July 2014,
Toua commissioned an affidavit deposed to by Nohako in his presence
in which the latter
stated unequivocally that he could not remember -
“
(H)elping a Mrs. Haasnoot or any of the
details in full about the signing of the will documents. All that I
can confirm (sic) that
the signature that the lady showed me was mine
and that is all I can remember about the signature.”
The
reference to the signature shown to him by “
the lady”
related to an event at 21h16 on 5 April 2014 when Nohako had appended
his signature to an affidavit which had been prepared in
advance and
which was presented to him at Cape Town Central by a woman (quite
possibly Catherine) for attestation. In that affidavit
Nohako had
purported to confirm the signature of the second will in his presence
by the deceased and his signature thereon as a
witness.
[70]
I
n his affidavit before Toua 3 months
later, Nohako stated, with reference to the 5 April 2014 affidavit,
that –
“
I only signed the affidavit because I
did (sic) saw my signature on the documents that the lady had showed
me. She had put in all
the dates and names in the affidavit and I
cannot remember any of them.”
[71]
Nohako was cross-examined in regard to the
affidavit made before Toua and in particular his ability to remember
the events with
such clarity in the witness box in 2016. He said that
he had only deposed to the affidavit before Toua because the latter
had threatened
him and implied that he (Nohako) may be complicit in
the fraudulent execution of the second will. This version was never
put to
Toua in cross-examination by counsel for the appellants,
notwithstanding the fact that Nohako was a witness called by them.
[72]
Just who was telling the truth in relation
to this issue was not resolved by the trial court, probably because
it was regarded as
a collateral issue. Nevertheless, it is difficult
to disregard the testimony of Toua who was a truly independent
witness with no
obvious interest in the matter. But, in my view,
whatever version prevails, the dispute raised an important issue
before the trial
court – the reliability and credibility of
Nohako as a witness. Unfortunately, Sher AJ failed to address Toua’s
evidence
at all in his judgment and did not offer any impressions of
the demeanour of either witness in the witness box. Importantly, the
question as to Nohako’s reliability and credibility in the
light of Toua’s contradictory testimony was not dealt with.
[73]
Either way, the point arising out of Toua’s
evidence was highly material. If Nohako had no recollection (in July
2014) of
the events relating to the signing of the will some 9 months
earlier, how was it that his memory improved so dramatically 2 years
later in the witness box? And if Nohako’s version is to be
believed, what faith can be placed in the testimony of a young
police
officer who was prepared to be brow-beaten by his superior into
deposing to an affidavit that was manifestly false?
[74]
The trial judge did not expressly prefer
Nohako’s evidence over that of Dr. Rosa. Rather, it seems he
did so impliedly. To
the extent that there was such an implicit
finding, I am unable to agree with the trial judge that there was
credible and reliable
evidence adduced by the appellants which
rendered Dr. Rosa’s evidence redundant. On the contrary, in my
respectful view,
there was compelling evidence from an acknowledged
expert in her field which fell to be considered in the context,
firstly, of
a dearth of evidence from Freddie and Catherine (who were
manifestly able to explain the material aspects of the preparation of
the second will and its execution) and, secondly, as against
questionable and unsatisfactory evidence from Nohako. In my
considered
view there was compelling evidence to suggest that the
signature of the testatrix on the second will (both the original and
the
second original or “copy” thereof) was suspect and
the trial court erred in finding that the appellants had established,
on a balance of probabilities, that the second will had in fact been
signed by Mrs. Haasnoot and that it was therefore a valid
testamentary instrument.
[75]
I should add that even without the evidence
of Dr Rosa, simply by looking at the signature on the second will and
comparing it with
the signature on the second deed of sale allegedly
signed by Tannie Jannie in the presence of Potgieter, it is obvious
even to
the uniformed eye that there is a striking dissimilarity
between the signatures. Furthermore, the signatures at the end of the
original and the copy of the second will are notably dissimilar and,
finally, the alleged signatures of the deceased witnessing
the
addition of “
erf […]
”
to clause 1.2 on both copies of the second will appear dissimilar to
the signatures at the end of each such copy. In remarking
on the
apparent lack of similarity, I am mindful of the evidence of Dr Rosa
that she was alive to the fact that she was examining
signatures of
an elderly person whose health was failing and that differences in
signatures might be expected.
THE
EVIDENCE REGARDING THE DEEDS OF SALE
[76]
I referred earlier to the involvement of
Attorney Basie Potgieter in this matter and shall deal shortly
therewith. His evidence
was adduced by the appellants in an endeavor
to demonstrate (as is required by s2(3) of the Act) what the
intention of the deceased
was regarding the disposal of her immovable
property. In particular, Freddie and Catherine attempted to persuade
the trial court
that it was always Tannie Jannie’s intention to
leave no. […]3 to Catherine, thus purporting to give content
to the
“
erf […]
“
alteration in clause 1.2. In view of my finding that the appellants
failed to discharge the onus of proving the authenticity
of the
second will, the testatrix’s intention is, strictly speaking,
no longer relevant. Nevertheless, I shall deal briefly
therewith
because of its more general relevance.
[77]
Potgieter testified that he practiced as a
conveyancer in offices in the city centre of Cape Town. He said that
on 16 October 2013
Freddie and Catherine arrived at his offices
unannounced and sought advice from him. Freddie produced a deed of
sale in respect
of number […]3 which recorded that at on that
day the property had been sold to Catherine for an amount of
R500 000.
The document contained signatures by both the
purchaser (who had signed at 08h45) and the seller (who had signed at
09h00) The
sale was subject to a suspensive condition that Catherine
was to procure a bank loan (secured by a first mortgage over the
property)
in the amount of R 700 000.
[78]
Potgieter said that the document contained
a number of curious provisions. Not only was it unusual for a
purchaser to apply for
a mortgage loan in excess of the purchase
price of the property but the deed of sale also made provision for
the sale of the entire
contents of the house (including pets) and the
seller’s Opel Kadett motor vehicle. Furthermore, the purchaser
undertook not
to dispose of the property (both movable and immovable)
without the prior written consent of Freddie and guaranteed the
seller
a lifelong right of occupation of the property (together with
her pets) until her demise.
[79]
Potgieter said that he enquired from
Freddie why the purchase price was so low and wanted to know what the
municipal valuation of
the property was. When told that it was the of
the order of R3,8m, Potgieter said he informed Freddie that he did
not think that
it was an arms’ length transaction and that he
was concerned that the deed of sale would not pass muster with the
Receiver
of Revenue. He went on to testify that the whole episode
appeared to him to be “
a cliché
“– an apparent case of an aged person being manipulated
and abused by younger members of her family.
[80]
Potgieter said that a couple of days later
Freddie returned with a revised deed of sale, this time in an amount
of R1, 5m. The witness
said that his suspicions had not been allayed
and he took it upon himself to drop by no. […]3 on his way
home one afternoon.
He said that he resided in the Southern Suburbs
and that the deceased’s house was en route to his home. He said
that he prepared
a revised deed of sale, on the instructions of
Freddie, and took the document to the deceased for signature. That
document made
provision for a purchase price of R1,5m, with a
suspensive condition relating to the procurement of a mortgage loan
in the amount
of R700 000. The purchase price was payable through the
sum of R500 000 being paid on demand by the transferring
attorneys
and the balance of R1m being secured by an acknowledgement
of debt by the purchase in favour of the seller.
[81]
Potgieter described how he stopped by
Tannie Jannie’s house on his way home one evening to satisfy
himself that the terms
of the deed of sale accorded with her wishes.
He described how the deceased signed the deed of sale in his presence
and he told
the court that he then left. It was clear that he was
embarrassed by the whole matter and was reluctant to add any
semblance of
professional sanction to what he perceived to be an out
and out scam. The situation was compounded when 2 days after
signature
of the second deed of sale Tannie Jannie signed a document
entitled “
SKULDOOREENKOMS
”
in which she purported to lend Catherine R1m to enable her to buy the
property and that “
terugbetaling
onderling gereel sal word”.
[13]
[82]
The problem with Potgieter’s evidence
is that the copy of the second deed of sale which was placed before
the court was dated
19 October 2013, which, it is common cause, was a
Saturday. This did not accord with his evidence that he definitely
stopped by
on a weekday on his way home. Nevertheless, it will be
noted from the aforegoing that within the space of 6 days Tannie
Jannie
is alleged to have signed four separate documents each of
which dealt with the disposal to Catherine of no. 13 – the
first
deed of sale on 16 October 2013, the second will and the
purported amendment thereto on the 17
th
,
the second deed of sale on the 19
th
and the acknowledgement of debt on the 21
st
.
[83]
Potgieter said that he found it strange
that when he met the deceased to procure her signature on the second
deed of sale, and we
know now it could not have been the 19
th
October 2013, she did not make mention of any of the other documents
she had signed relating to the disposal of her property; this
notwithstanding the fact that at that stage she was alleged to be in
full possession of her mental faculties.
[84]
But I have digressed somewhat. The
importance of Potgieter’s evidence for the purposes of this
appeal is that the signature
allegedly appended in his presence to
the second deed of sale bears no resemblance to -
·
the signature on the first deed of
sale;
·
the signature on the original of the
second will;
·
the signature on the original copy
of the second will; or
·
the signature on the acknowledgment
of debt.
If it
was, as Potgieter says, that Tannie Jannie signed the second deed of
sale in his presence it is apparent that the signature
that he
identified on that document stands in stark contrast to the others
relied upon by Freddie and Catherine in advancing the
integrity of
the second will. This, too, was a factor which the trial court was
duty bound to interrogate before concluding that
the signature on the
second will was that of the deceased.
CONCLUSIONS
[85]
In light of the aforegoing I am of the view
that the trial court erred in upholding the validity of the second
will save for the
manuscript alteration thereto. In the
circumstances, it erred further in holding that the deceased’s
immovable property located
at […]3 V Avenue, Vredehoek, Cape
Town should devolve upon her heirs by way of intestate succession.
[86]
In light of the fact that it was common
cause that the first will was valid the correct order would have been
for the court to grant
the principal relief sought in the plaintiff’s
declaration, to have dismissed the first and second defendants’
counterclaim
and to have made an appropriate costs order.
[87]
In addition to the principal relief sought
by the plaintiffs there were prayers in the declaration requiring
Freddie and Catherine
to vacate no. 13 within 30 days of the court’s
order and directing them to deliver to Jan and John, in their
respective capacities
as the executors of the deceased’s
estate, the keys to the property and all of the deceased’s
movable property in their
possession. We were informed during
argument by Mr. Zazeraj for the respondents that Freddie and
Catherine were still in occupation
of the property and in possession
of the deceased’s movables. Counsel accepted that once the
executors of the estate have
been duly appointed by the Master they
will be in a position to take the necessary steps to obtain
possession of the all of the
deceased’s property. In the
circumstances, counsel accepted that it was not necessary for this
court to make any order in
regard thereto.
[88]
While the first will provides for the
appointment of Jan and John Westerhuis as the executors of the estate
of the deceased, no
provision is made therein for the appointment of
any substitute executor in the event of either of the nominated
executors not
being able to act. In light of the fact that John has
since died it may be that Derick (as the executor in John’s
estate)
might, for instance, be considered to be substituted as Jan’s
co-executor. But the appointment of such a substitute executor
is not
the function of this court which does not have the power to appoint
an executor.
[14]
[89]
In the circumstances, I consider that it
would not be prudent to grant the relief sought in prayer (c) of the
declaration which
directs The Master to confirm the appointment of
Jan and John Westerhuis. The appointment of Jan as executor will
follow as a consequence
of the order of validity in respect of the
first will and I will leave the appointment of any further executor
to the discretion
of The Master, should she consider it necessary.
[90]
As far as costs are concerned, there is no
reason why the costs on appeal should not follow the result. Given
that the order of
the trial court is to be set aside and replaced
with an order squarely in favour of the plaintiffs, this court is at
liberty to
consider the question of an appropriate costs order in
that forum afresh. In contested will matters courts often direct that
the
litigation costs are to be borne by the estate.
[15]
However, neither side in this matter sought such an order, each
asking for the opponent to carry the costs.
[91]
In my view, the conduct of Freddie and
Catherine in this saga is to be deprecated. Not only did they seize
the moment and opportunistically
take control of the deceased’s
person and her estate when she was at her most vulnerable, they have
attempted to ensconce
themselves into a seemingly impregnable
position at the expense of the other siblings and the intended
beneficiaries under the
first will. Freddie, it is said, is an
unrehabilitated insolvent and as such appears to have sought to
shield his financial exposure
and interests behind his young ex-wife.
This is manifestly not a situation where the estate should carry the
costs. As an indication
of the court’s displeasure with the way
in which the defendants (the appellants before us) have conducted
themselves throughout
it is appropriate that they should, jointly and
severally, be ordered to bear the costs in the trial court.
ORDER
OF COURT:
A.
The appeal is dismissed with costs, such
costs to be paid jointly and severally by the First and Second
Appellants.
B.
The order of the court
a
quo
is set aside and replaced with the
following:
“
1.
It
is declared that the document which is attached to the plaintiffs’
declaration as Annexure JLW 1 and duly signed and executed
by
Jannetje Haasnoot (ID No […]) (hereinafter “the
deceased”) on 16 January 2013, is the deceased’s valid
last will.
2. The third defendant is directed to accept
the document marked as Annexure JLW 1 as the deceased’s valid
last will.
3. The documents attached to the plaintiffs’
declaration as Annexures JLW 4, JLW 5, JLW 6 and JLW 8, purporting to
be the
deceased’s last will are invalid and null and void.
4. The first and second defendants’
counterclaim is dismissed.
5. The first and second defendants are directed
to pay the costs herein jointly and severally, the one paying the
other to be absolved,
such costs to include all costs relating to the
motion proceedings which preceded the filing of the plaintiffs’
declaration.”
__________________
GAMBLE J
I
AGREE.
IT
IS SO ORDERED.
__________________
ERASMUS J
I
AGREE.
___________________
PARKER J
[1]
This was, however, not the deceased's first will: the evidence
before the trial court suggests that she made no less than eight
wills between 1997 and her death.
[2]
The amendment purported to vary the word “
huisinhoud”
by the deletion of the suffix “
inhoud” and
the
substitution of the phrase “
erf […]”
therefor so that the amended clause referred to “
huis
erf […]”
[3]
Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales
Co. (Pty) Ltd
1971(2) SA 388 (W) at 396G- 397B
[4]
Haupt t/a Soft Copy v Brewers Market Intelligence (Pty) Ltd and
others
[2006] ZASCA 40
;
2006 (4) SA 458
(SCA) at
[19]
[5]
Letsekga v The Master and Others
1995 (4) SA 731
(W) at
735F-G.
[6]
Henwick v The Master and Another
1997 (2) SA 326
(C) at 334J.
[7]
“
shall order the Master
“
[8]
Ex parte Maurice
1995 (2) SA 713
(C) at 716E – 717B;
Anderson and
Wagner NNO and Another v The Master and Others
1996 (3) SA 779
(C) at 785G.
[9]
Van Wetten and Another v Bosch and Others
2004 (1) SA 348
(SCA) at [16];
De Reszke v Marais and Others
2006 (2) SA 227
(SCA) at [12].
[10]
Elgin Fireclays Ltd v Webb
1947 (4) SA 744
(A) at 749- 750;
Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979
(1) SA 621
(A) at 624E.
[11]
The validity of the codicil, of course, only to be considered if the
second will is found to be valid.
[12]
Oliphant v Shield Insurance Co Ltd
1980 (1) SA 903
(C) at
907F-H;
Humphrys v Lazer Transport Holdings Ltd
1994 (4) SA
333
(C) at 400F.
[13]
“Repayment will be arranged by the parties in due course”
[14]
Bankorp Trust Bpk v Pienaar en ‘n ander
1993 (4) SA 98
(A) at 107D-108H
[15]
Katz and Another v Katz and Others
[2004] 4 All SA 545
(C) at
[145]