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[2018] ZAWCHC 128
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Govender NO and Others v Gounden and Others (AR452/2015) [2018] ZAWCHC 128 (24 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: AR452/2015
In
the matter between:
HAROLD
GOVENDER
N.O.
FIRST
APPELLANT
(EXECUTOR
ESTATE
LATE
(Third
Respondent in
GOPALSAMY
GOUNDEN)
the
Court
a quo)
SHAHINA
MAHARAJ
N.O.
SECOND
APPELLANT
(EXECUTRIX
ESTATE
LATE
(Fourth
Respondent
GOPALSAMY
GOUNDEN)
in
the Court
a quo
)
MIRIAM
BIBI ABDOOL
RAHMAN
THIRD
APPELLANT
(First
intervening Party in the Court
a quo)
MAHOMED
FARHAD
GOUNDEN
FOURTH
APPELLANT
(Second
intervening Party in the Court
a quo
)
and
LUTCHMI
GOUNDEN
FIRST
RESPONDENT
(First
Applicant in the Court
a quo)
RIANNA
NIVEDITA
GOUNDEN
SECOND
RESPONDENT
(Second
Applicant in the Court
a quo
)
MASTER
OF THE HIGH
COURT,
THIRD
RESPONDENT
DURBAN
(First
Respondent in the Court
a quo)
FREDERLIKE
ARTHEMIS LIASIDES N.O.
FOURTH
RESPONDENT
(EXECUTRIX
ESTATE LATE SIVA
LUTCHMEESOMNAIDOO
(Second
Respondent in the Court
a quo
).
Coram: K Pillay, Koen and
Ploos Van Amstel, JJ
Heard: 30 July 2018
Delivered: 24 August 2018
O R D E R
1. In respect of the
first respondent’s application to adduce further evidence on
appeal by affidavit, the opposition thereto,
the first respondent’s
withdrawal of that application, and the appellants’ objection
to that withdrawal contained in
the appellants’ notice in terms
of uniform rule 30 read with uniform rule 41(1)
(a)
, the
following orders are granted:
(a) Insofar as the
consent of this court might be required for the withdrawal of that
application, such consent is granted;
(b) The parties will each
be liable for their own costs of the application to adduce further
evidence, the opposition thereto, and
the dismissal of the
appellants’ notice in terms of uniform rule 30 read together
with uniform rule 41(1)
(a)
.
2.
The
appeal is dismissed with costs.
J
U D G M E N T
Koen
J (K Pillay and Ploos van Amstel JJ concurring)
Introduction
[1]
The crisp issue arising in this appeal is whether a spouse who is
married in community of property requires the consent of the
other
spouse to that marriage to validly renounce the benefits of an
intestate inheritance which would otherwise accrue to such
spouse
and/or the joint community estate.
Relevant
background
[2]
The first respondent was married to Mr Gopalsamy Gounden (‘Mr
Gounden’) on 2 October 1974. One child, the
second
respondent, was born of that marriage. The first respondent and Mr
Gounden subsequently separated. They thereafter led separate
lives
for approximately 35 years, but never formally divorced.
[3]
After his separation from the first respondent Mr Gounden lived with
the third appellant as his life partner. From that
relationship
the fourth appellant was born.
[4]
The first respondent’s sister, Siva Lutchmi Somnaidoo (‘the
deceased’) died intestate on 19 August 2008. The
first
respondent is an intestate heir in the estate of the deceased.
[5]
Mr Gounden died testate on 6 March 2012. The first and second
appellants are the duly appointed executor and executrix to the
estate of the late Mr Gounden and the first respondent.
[6]
The first respondent has renounced the inheritance from the
deceased’s estate. The formal renunciation in writing was
signed by the first respondent at Isipingo on 11 July 2013 and
records that she renounces ‘any inheritance or bequests due
to
me as an intestate heir from the estate of the late Siva Lutchmee
Somnaidoo, estate number 17603/2008 DBN’. It appears
that this
document was executed as it was formally required, but that the
actual renunciation had occurred informally and that
the intention to
do so had been formed well prior to that date, although the exact
date is not specified. It is that renunciation
which gave rise to the
application and judgment forming the subject of this appeal.
[7]
The Master of the High Court Durban, is the third respondent.
The third respondent appointed the fourth respondent as
the executrix
in the estate of the deceased on 25 May 2012.
[8]
On 21 September 2012 a first liquidation and distribution account in
the estate of the deceased was lodged. It was examined
by the third
respondent and queries were raised. Further amended accounts were
lodged subsequently. On 5 December 2012 a further
amended account was
lodged and examined. On 3 January 2013 the third respondent granted
permission to advertise the account in
terms of
s 35(5)
(a)
of
the
Administration of Estates Act 66 of 1965
.
[9]
An objection was then lodged to the account by the executors of the
Estate Gounden. The basis of their objection is that the
amount
awarded to the first respondent vested in the joint estate of Mr
Gounden and her, and subsequent to his death in the joint
estate of
the late Mr Gounden and the first respondent as his surviving spouse,
which they administer. An objection was also raised
by the first
respondent based on her renunciation which was not given effect to in
the accounts.
[10]
The third respondent ruled on the objections and on 20 August 2013
determined that the ‘inheritance due to [the first
respondent]
…forms part of her joint estate with her husband who has
subsequently died’. The third respondent was
not prepared to
accept the renunciation signed by the first respondent alone as a
valid renunciation.
[11]
As a result of these rulings, the first and second respondents
brought an application against the third respondent
[1]
,
the fourth respondent,
[2]
and
the first and second appellants
[3]
as the executors in the estate of the late Gounden, claiming the
following relief:
‘
1. That the letter
of renunciation by Lutchmi Gounden,
[4]
Annexure ‘C’ to the founding affidavit is declared valid
and binding and enforceable in respect of the estate of the
late
Sivalutchmee Somnaidoo, estate No. 17603/2008/DBN;
2. That the First
Respondent
[5]
is hereby directed
to accept the aforesaid renunciation as valid and binding and
enforceable.
3. That the First
Respondent is ordered to pay the costs of this application,
alternatively, the First Respondent is ordered to
pay these costs
jointly and severely with the Second, Third and Fourth Respondents in
the event of the Second, Third and Fourth
Respondents opposing this
application.
4. Further
and/alternative relief.’
[6]
[12]
In the application the first respondent explained the events giving
rise to her renunciation as follows:
‘
12
12.1 In the event that I
accept the benefit from Siva Lutchmee’s estate, such benefit
would, by virtue of my marriage to Gopalsamy,
accrue to the joint
estate of myself and Gopalsamy (Gopalsamy’s estate since his
deceased).
12.2 Since Gopalsamy
bequeathed his estate to his son
[7]
and to Miriam
[8]
and others the
net result would be that half of the benefit that I am to receive
from my sister, Siva Lutchmee would go to Gopalsamy’s
beneficiaries.
12.3 For obvious reasons
I am opposed to that.
13.
13.1 In order to avoid
the benefit from my sister’s estate accruing to the community
of property estate of myself and Gopalsamy,
I renounced my benefit
from the estate Siva Lutchmee.
[9]
13.2 A copy of the
letters of renunciation is annexed hereto marked “C”.’
[13]
On 19 November 2014, D Pillay J granted the relief claimed in
paragraphs 1 and 2 of the notice of motion and directed that
the
costs of the application be borne by the appellants jointly and
severally, one paying the other to be absolved.
[14]
The present appeal lies against that judgment. The grounds of
appeal relied upon are as follows:
‘
2.1 The learned
Judge erred in finding that an inheritance vests in an intestate heir
when
dies venit
occurs.
2.2 The learned Judge
ought to have found that an inheritance vests in an intestate heir
when
dies cedit
occurs.
2.3 The learned Judge
should have found that when
dies cedit
occurs the inheritance
not only vests in the intestate heir but in the joint estate where
the intestate heir is married in community
of property.
2.4 The learned Judge
should have found and erred in not finding that when
dies cedit
occurs the consent of the other spouse where the parties are married
in community of property is required in order to renounce
any
inheritance.
2.5 The learned Judge
erred in applying a strict interpretation of the provisions of
S
15(4)(ii)
of the
Matrimonial Property Act 88 of 1984
.
2.6 The learned Judge
ought to have interpreted the aforesaid section so as to read in the
words “or reject (renounce)”
in order to give the said
section a sensible and business like interpretation.
2.7 The learned Judge
should have found that it was an implied provision of the aforesaid
section that if the consent of a spouse
is required to receive an
inheritance such consent must be required to reject or renounce
an intestate inheritance.’
The
application to lead further evidence on appeal
[15]
Subsequent to the appeal being noted, the first respondent filed an
application ‘for leave to adduce further evidence
by way of
affidavit’ at the hearing of the appeal. She alleges that the
need for adducing such further evidence arises from
the first and
second appellants, in their heads of argument for the first time,
introducing the argument that the renunciation
was filed out of time,
although that was not raised before the court a quo and was not a
ground of appeal. The affidavit records
that although the ‘alleged
lateness is not an issue before this hearing’ it was
‘imperative’ that the first
respondent explain ‘the
apparent lateness of the renunciation.’ She then explains that
the fourth respondent was personally
informed on more than one
occasion that she had elected to renounce her intestate benefit long
before the estate account was drawn,
and that the liquidation and
distribution accounts should have been amended to take account of
that decision, but that the fourth
respondent refused to do so.
Her allegations in this regard were confirmed by her brother Krishna
Naidoo in a confirmatory
affidavit.
[16]
The application to adduce further evidence was opposed by the first
and second appellants. They contend that the appeal court
was not
precluded from considering whether the first respondent’s
renunciation was filed out of time and whether the claim
of a
renunciation was inconsistent with various arguments advanced by the
first respondent. They submit that the renunciation was
designed
purely for the purposes of defeating the valid claim of her late
spouse, Mr Gounden, or his estate.
[17]
In an affidavit filed by the fourth respondent she explains that the
intestate estate of the deceased was previously administered
personally by the first respondent’s brother who on 9 January
2012 instructed her to attend to the finalization thereof.
On
or about 1 June 2012 he instructed her to prepare a liquidation and
distribution account on the basis that the first respondent
had
renounced her intestate inheritance in favour of the second
respondent. The fourth respondent however refused to do so based
on
her belief that the consent of the first respondent’s spouse,
Mr Gounden was required and he had not presented a written
renunciation by the first respondent, with the necessary spousal
consent. It is in this affidavit that the fourth respondent refers
to
having perused certain bank statements relating to the estate of the
deceased and records that she queried with the first respondent’s
brother a payment of R700 000 made on 20 October 2010 and four
payments of R400 000 made on 22 June 2011 from the estate
funds.
The bank statements annexed by her reflect these withdrawals from the
estate account but do not reflect to whom payment
was made. These
payments, she said, were explained by the first respondent’s
brother as payments already paid to heirs of
the deceased as a
portion of their inheritance. She concludes that she felt she had to
bring these to the attention of the court
‘with regard to the
renunciation’. She however does not explain how exactly these
payments are linked, if at all, to
the renunciation of any benefit by
the first respondent.
[18]
In her replying affidavit in the application to adduce further
evidence the first respondent denies having received any payment
from
the estate, or that she had adiated. Her evidence in this regard was
confirmed in a confirmatory affidavit by her brother.
There is
nothing to gainsay that evidence. The first respondent further
confirms that her daughter, the second respondent did receive
a
payment from the deceased’s estate, explaining that such
payment was ‘on the grounds of her, the first respondent’s
repudiation’/renunciation.
[10]
She concludes by submitting that the contention by the appellants
that she had adiated and had received a benefit from the deceased’s
estate, is incorrect.
[19]
When the appeal was initially set down, it was adjourned sine die.
Subsequently and before the appeal was set down again, the
first
respondent, by notice dated 13 February 2017, withdrew her
application to adduce further evidence. No tender of costs was
contained in that notice. In response, the appellants, on 21 February
2017, filed a notice in terms of uniform
rule 30
read together with
uniform
rule 41(1)
(a)
complaining that the first respondent’s
notice of withdrawal of her application constituted an irregular step
in terms of
uniform
rule 30
, in that:
‘
(a) The First
Respondent requires the consent of the parties, which has not been
obtained;
(b) The First Respondent
requires the leave of the court, to withdraw her application referred
to above.’
The
appeal was thereafter on 24 November 2017 again set down for the date
that argument was heard by us.
[20]
The validity of the First Respondent’s renunciation was never
attacked before the court
a quo
on the basis that it was
‘late’ or that the First Respondent had previously
adiated by accepting benefits from the
deceased’s estate which
might preclude a renunciation. Not surprisingly, the grounds of
appeal make no reference thereto.
Accordingly, it is not an issue in
this appeal. Mr Naidoo, on behalf of the first and second
appellants, and Mr Gunase, on
behalf of the third and fourth
appellants, however urged us to reject the first respondent’s
withdrawal of the application
to adduce further evidence as
irregular, and to admit the evidence contained in the affidavits in
that application, particularly
the answer of the fourth respondent
regarding the payments she found to have been made from the estate
bank account. This, it was
submitted, was essential to allow a
‘proper and full ventilation of the issues in dispute’
and would be ‘in the
interests of justice’, specifically
as it might show that the first respondent had elected to adiate,
which might preclude
a subsequent change to elect to renounce the
benefits from her late sister’s estate.
[21]
For evidence to be adduced on appeal, apart from it being required
that a satisfactory explanation must be provided why such
evidence
was not adduced in the application at the appropriate time, the
relevance and materiality of such evidence to the issues
in dispute
must, at least prima facie, be established. On the affidavits filed
there is not even a suggestion that the R700 000
and R400 000
payments were made to the first respondent, hence potentially
pointing to an election to adiate which would be in
conflict with the
intention to renounce the benefit. Indeed the contrary is the case.
[22]
The evidence contained in the answering affidavits to the application
to adduce further evidence on appeal has no material
bearing on the
issues in the main application which would justify that evidence
being received.
[23]
The withdrawal of the application to adduce further evidence
furthermore occurred prior to the appeal being enrolled for the
present appeal hearing. There was no impediment to the first
respondent withdrawing that application without the consent of the
appellants. But even if I was wrong in that regard, and the previous
set down of the appeal when it was adjourned sine die was
to
constitute the ‘set down’ for the purposes of uniform
rule 41(1)
(a)
,
[11]
then the application could nevertheless be withdrawn, even in the
absence of consent by the appellants, with the leave of this
court.
[24]
The further evidence sought to be adduced would serve no material
purpose. There would be no purpose to ‘cause’
that
evidence to be introduced by refusing leave to withdraw the
application to adduce such evidence, if the consent of this court
was
in fact required for a valid withdrawal of that application.
[25]
Insofar as the consent of this court might be required for a valid
withdrawal of the first respondent’s application to
adduce
evidence, such consent should be, and is hereby granted. The
appellants’ objections contained in their notice in terms
of
uniform
rule 30
read together with uniform
rule 41(1)
(a)
accordingly fall away as academic. If not, then it should in any
event simply be dismissed.
[26]
In the exercise of my discretion on the issue of the costs of the
application to adduce further evidence and the opposition
thereto I
conclude that each party must pay their own costs.
Was
the consent of the first respondent or his estate required for a
valid renunciation?
[27]
In
De
Leef Family Trust & others v Commissioner for Inland Revenue
[12]
the
Appellate Division held that:
‘…
according
to our modern system of administration of deceased estates, the heir
or legatee of an unconditional bequest obtains a
vested right (
dies
cedit)
to be entitled to the bequest on the death of the testator
(
a
morte testatoris)
. Such a right is transmissible but
his claim is enforceable
only at some future time
when the
executor’s liquidation and distribution account has been
confirmed (
dies venit)
. He then has an enforceable right
to claim payment, delivery or transfer of his bequest (
ius in
personam ad rem acquirendam).
’
[28]
In this case, the estate accounts have not been approved by the
Master. Accordingly, an incorporeal vested right (
dies cedit)
to the bequest had accrued on the death of the deceased, but that
right had not yet been transformed into an enforceable right
to claim
payment, delivery or transfer of the inheritance.
[29]
The learned judge in the court a quo, in my view correctly,
considered that the answer to the question whether the first
respondent’s
renunciation without the consent of Mr Gounden (or
the first and second appellants) was valid should ‘be sourced
from the
Matrimonial Property Act&rsquo
;, specifically
s
15(3)
(b)(iii)
.
[30]
She went on to conclude that:
(a) as regards
s
15(3)
(b)(iii)
of the
Matrimonial Property Act
[13
]
:
‘…
the
express text is unambiguous. It is only the receipt of an
inheritance that accrues to the joint estate that requires the
consent, informal as it might be, of the other spouse. The
joint estate is not the heir to Somnaidoo (the deceased) and
therefore the consent of the deceased, (Gounden) was not required.
Counsel for the Third and Fourth Respondents requested that one
should read into the text of
S 3(b)(iii)
words to the effect that
consent of the other spouse should be required to not only receive
but also ‘reject or renounce’
any inheritance, is a far
reaching intervention that cannot be entertained in the circumstances
of this case. This case clearly
exposes and takes into account why it
is necessary to allow the heir to retain the power of acceptance or
rejection of an inheritance.
That is part of our common law and
cannot be varied for the convenience of some parties‘; and
(b) until ‘
dies
venit
occurs the [first respondent] was free to dispose of her
inheritance as she pleased.’
[31]
Although I agree with the order granted by the learned judge, I
respectfully disagree with her reasons set out in the preceding
paragraph. I shall deal with the extent of my disagreement when
setting out what I consider to be the legal position below.
[32]
Subject to certain limited exceptions,
[14]
the legal effect of a marriage in community of property is that all
assets held by the spouses, and liabilities, whether subsisting
at
the time of the marriage or acquired or incurred
stante
matrimonio
,
form a single joint estate held by the spouses in co-ownership, in
equal undivided shares, The assets of the joint estate consist
of all
the assets of both spouses (movable or immovable, corporeal or
incorporeal)
[15]
and would
include the vested right the first respondent acquired on the death
of the deceased to inherit, and the inheritance itself
once the
estate accounts have been confirmed.
[33]
In the past, prior to 1 November 1984 when the provisions of the
Matrimonial Property Act came
into operation, all these assets of a
joint community estate were administered solely by the husband, his
wife occupying the position
of a minor in law subject to the marital
power
[16]
of her husband. The
Matrimonial Property Act in
Chapter III introduced a system of joint
administration in respect of marriages in community of property.
[34]
Section 14
of the
Matrimonial Property Act provides
for the equal
power of spouses married in community of property, in the following
terms:
‘
Subject to the
provisions of this Chapter, a wife in a marriage in community of
property has the same powers with regard to the
disposal of the
assets of the joint estate, the contracting of debts which lie
against the joint estate, and the management of
the joint estate as
those which a husband in such a marriage had immediately before the
commencement of this Act.’
[35]
Either spouse could thereafter in generally deal with assets of the
joint estate
vis-à-vis
third parties.
S 15(1)
of the
Matrimonial Property Act provides
:
‘
Subject to the
provisions of subsections (2), (3) and (7), a spouse in a marriage in
community of property may perform any juristic
act with regard to the
joint estate without the consent of the other spouse.’
[36]
Section 15(1)
must however be read subject to inter alia
s 15(2)
and
(3).
[37]
Section 15
(2) provides for certain acts in relation to the assets of
the joint estate which a spouse may not perform without the written
consent of the other spouse. Included in these are, for example the
alienation and mortgage of immovable property, entering into
any
contract for the alienation, mortgaging, burdening with a servitude
or conferring any other real right in immovable property
forming part
of the estate, and the like.
[38]
Significant for the present appeal are the following provisions of
s
15:
‘
(3) A spouse shall
not without the consent of the other spouse –
(a) alienate, pledge or
otherwise burden any furniture or other effects of the common
household forming part of the joint estate;
(b) receive any money due
or accruing to that other spouse or the joint estate by way of –
(i) remuneration,
earnings, bonus, allowance, royalty, pension or gratuity, by virtue
of his profession, trade, business, or services
rendered by him;
(ii) damages for loss of
income contemplated in subparagraph (i);
(iii) inheritance,
legacy, donation, bursary or prize left, bequeathed, made or awarded
to the other spouse;
(iv) income derived from
the separate property of the other spouse;
(v) dividends or
interest on or the proceeds of shares or investments in the name of
the other spouse;
(vi) the proceeds of any
insurance policy or annuity in favour of the other spouse;
(c) donate to another
person any asset of the joint estate or alienate such an asset
without value, excluding an asset of which
the donation or alienation
does not and probably will not unreasonably prejudice the interest of
the other spouse in the joint
estate, and which is not contrary to
the provisions of subsection (2) or paragraph (a) of the subsection.
(4) The consent required
for the purposes of paragraphs (b) to para (g) of subsection (2), and
subsection (3) may, except where
it is required for the registration
of a deed in a deeds registry, also be given by way of ratification
within a reasonable time
after the act concerned.
(5) …
(6) …
(7) …
(8) In determining
whether a donation or alienation contemplated in subsection (3) (c)
does not or probably will not unreasonably
prejudice the interests of
the other spouse in the joint estate, the court shall have regard to
the value of the property donated
or alienated, the reason for the
donation or alienation, the financial and social standing of the
spouses, their standard of living
and any other factor which in the
opinion of the court should be taken into account.
(9) When a spouse enters
into a transaction with a person contrary to the provisions of
subsection (2) or (3) of this section, or
an order under
section
16
(2), and –
(a) that person does not
know and cannot reasonably know that the transaction is being entered
into contrary to those provisions
or that order, it is deemed that
the transaction concerned has been entered into with the consent
required in terms of the said
subsection (2) or (3), or while the
power concerned of the spouse has not been suspended, as the case may
be;
(b) that spouse knows or
ought reasonably to know that he will probably not obtain the consent
required in terms of the said subsection
(2) or (3), or that the
power concerned has been suspended, as the case may be, and the joint
estate suffers a loss as a result
of that transaction, an adjustment
shall be effected in favour of the other spouse upon the division of
the joint estate.’
[39]
The provisions of the
Matrimonial Property Act have
amended
materially the common law in regard to the legal capacity of women in
a marriage in community of property to deal with
assets of the joint
estate
vis-à-vis
third parties, and also the legal
capacity of the spouses
inter se,
by imposing limitations on
the powers of spouses to deal with certain categories of assets and
monies due or forming part of a joint
estate at common law.
[40]
S 15(3)(c)(iii)
contains the answer to this appeal. I however
respectfully disagree with the court a quo’s interpretation
thereof. On my
interpretation of
s 15(3)
(b)(iii)
, the
prohibition is against ‘a spouse’ receiving ‘any
money due or accruing’ to the ‘other
spouse’,
‘without the consent of the other spouse’ in respect of
‘an inheritance, legacy, donation, bursary
or prize left,
bequeathed, made or awarded to the other spouse.’ The
‘other spouse’ in that provision
on the facts of this
case is the first respondent, and it is the written consent of the
first respondent as ‘the other spouse’
which is a
pre-requisite to the late Mr Gounden (or the first and second
appellants) as ‘a spouse’ becoming entitled
to ‘receive’
(being the operative verb in the provision) ‘the inheritance or
legacy bequeathed, made or awarded’
to the first respondent as
‘the other spouse’. It is therefore not the consent
of the late Mr Gounden as the
judgment of the court a quo appears to
suggest which is required by the first respondent to ‘receive’
any inheritance
or legacy, nor would it be his consent that would be
required to also ‘reject or renounce’ any inheritance (by
reading
in those words, if that were competent).
[41]
It has never been suggested that the first respondent gave any such
consent to Mr Gounden. Accordingly Mr Gounden, or the first
and
second appellants after his death, could not receive any ‘money
due or accruing to that other spouse [ie, the first respondent]
or
the joint estate by way of … inheritance…’.
[42]
‘Receive’ is defined in the Oxford dictionary, third
edition, as ‘to get or accept something that somebody
has given
or sent.’ Whether the meaning of ‘receive’ is
confined to a physical detention, or whether it
extends to receiving
for the purposes of holding the dominium thereto, the late Mr Gounden
could not ‘receive’ any
money ‘due or accruing’
from the inheritance or legacy, regardless of whether for himself or
the joint estate. If he
did so contrary to the provisions of
s 15(3)
,
that is, without the consent of the first respondent, his conduct
could on the strength of this statutory prohibition probably
be
interdicted. If already disposed of to a third party, as contemplated
in subsection (9), and the joint estate suffers a loss
as a result of
that transaction, an adjustment would have to be effected in favour
of the first respondent upon the division of
the joint estate.
None of that of course happened. It however illustrates that the
intention behind
s 15(3)
is that only the first respondent as ‘the
other spouse’ could ‘receive’ and hence deal with
any such inheritance
which might be due to or accrue to her or the
joint estate. As with remuneration, earnings, bonus, allowance,
royalties,
pension or gratuity or damages for lost income arising
from a profession, trade, business or services rendered by her,
[17]
which only she could receive unless she consented to her spouse
receiving same, she would ‘receive’ any inheritance
and
be entitled to deal with it to the exclusion of her spouse.
[43]
The same considerations as above will apply, a fortiori, to the
incorporeal vested right which accrued to the first respondent
and
the joint estate immediately on the death of the deceased (
dies
cedit
), before it matures into an enforceable claim for delivery
of the actual inheritance once determined (
dies venit
).
[44]
The learned judge in the court a quo also concluded that until ‘
dies
venit
occurs the [first respondent] was free to dispose of her
inheritance as she pleased.’ If the learned judge’s
statement
meant that the first respondent’s right to renounce
was determined by whether
dies venit
had occurred or not, a
valid renunciation post
dies venit
not being competent, then I
respectfully disagree. Most renunciations will probably occur pre
dies venit, but in the absence of
conduct inconsistent with an
election to renounce, there is probably no bar to a renunciation post
dies venit within a reasonable
time.
[45]
Accordingly, Mr Gounden could not receive any assets constituting an
inheritance to which the first respondent became entitled,
although
it would become part of the joint estate, without the first
respondent’s consent. Likewise he could not ‘receive’
the vested right which accrued to the first respondent (and the joint
estate) on the death of the deceased unless she consented.
It follows
that if the first respondent wished to renounce the benefit of
receiving such inheritance (or the vested right to claim
such an
inheritance) then it was for the first respondent and for her alone,
and not Mr Gounden as well, to decide.
[46]
Although the inheritance, or the right to claim same would be an
asset of the joint estate as regards outsiders like creditors,
the
provisions of
s 15(3)
(c)
of the
Matrimonial Property Act do
not in my view find application as the first respondent did not
‘donate to another person any asset of the joint estate or
alienate such an asset without value.’ Although the act
of renunciation amounts to giving up a right to or an asset,
there is
no donation ‘to another person’ as contemplated by the
provision. The renunciation simply entails that the
bequest then
falls to be dealt with in accordance with the provisions of the
Intestate Succession Act. Whatever devolution of the
assets
comprising the inheritance might follow after the renunciation,
arises by operation of law, and does not arise from any
decision to
‘donate to another person’.
[47]
Section 15(3)(c) also contains a prohibition against any attempt to
‘alienate such an asset without value’. It
seems that
that phrase might have been included in s 15 (3)(c) to cater for the
situation where the heir is insolvent and the issue
arises whether a
renunciation might amount to a disposition without value in terms of
s 26 of the Insolvency Act.
[18]
In that context, it was found by Goldblatt J in
Kellerman
NO v Van Vuuren & others
[19]
that,
although there was much to be said for the argument that on the death
of the deceased
dies
cedit
the
right to inheritance vested, repudiation therefore possibly
constituting a disposition without value of an asset in his estate,
the law had been settled by the Full Cape Court in
Van
Schoor’s Trustees v Executors of Muller
[20]
.
In
Van
Schoor
it was held, relying on Voet 42.8.16, that a repudiation of an
inheritance to avoid it going to creditors was ‘not
considered
in law an alienation in fraud of creditors; as there can be no
alienation of what is omitted to be acquired’.
Goldblatt
J found the passage in Voet to be in full support and said that ‘it
would be wrong for … a single Judge,
to disturb the law of
this land, as it has now stood for some 150 years, and it would take
… a higher Court to do such a
thing.
[21]
[48] In the circumstances
then I conclude that the order of the court a quo was correct, albeit
for different reasons. The appeal
accordingly falls to be dismissed.
Costs
[49] As regards the costs
of the appeal, there is no reason why the costs should not follow the
result.
Order
[50]
The orders granted are accordingly as follows:
(a) In respect of the
first respondent’s application to adduce further evidence on
appeal by affidavit; the opposition to
that application; the first
respondent’s withdrawal of that application, and the
appellants’ objection to that withdrawal
of the application
contained in the appellants’ notice in terms of uniform rule 30
read with uniform rule 41(1)
(a)
, the following orders are
granted:
(i) Insofar as the
consent of this court might be required for the withdrawal of that
application, such consent is hereby granted;
(ii) The parties will
each be liable for their own costs of the application to adduce
further evidence; the opposition thereto,
and the dismissal of the
Appellants’ notice in terms of uniform rule 30 read together
with uniform rule 41(1)
(a)
.
(b) The appeal is
otherwise dismissed with costs.
___________________________________
Koen
J
Appearances
For
the first and second appellants: MR. D D NAIDOO
Instructed
by: RAJ BADAL & ASSOCIATES
Ref.:
MR R BADAL/DR/G956
Tel.:
032 533 1010
For
third and fourth appellants: MR. H GUNASE
Instructed
by: MESSRS CKMG ATTORNEYS
Tel.:
032 533 0296
c/o
Messrs Udesh Ramesar
Ref.:
MR S MOODLEY/KS/M1009
Tel.:
033 345 9571
For
the first and second respondents: MR S MORGAN
Instructed
by: GOVENDER, PATHER & PILLAY ATTORNEYS
Ref.:
F ESSOP/07M055178
Tel.:
031 301 4542
[1]
The first respondent in the court a quo.
[2]
The second respondent in the court a quo.
[3]
The third and fourth respondents in the court a quo.
[4]
The
first respondent in this appeal.
[5]
In
that application
the
Master was the first Respondent.
[6]
The third and fourth appellants subsequently successfully intervened
as parties to that application.
[7]
The
fourth appellant in this appeal.
[8]
The
third appellant in this appeal.
[9]
The motive for renouncing the benefits is irrelevant to the
application. There must however be a valid renunciation.
[10]
This
would be appear to be the effect in law of the renunciation in terms
of
s 1(7)
of the
Intestate Succession Act 81 of 1987
.
[11]
The
relevant part of uniform r
ule
41(1)
(a)
provides
that:
‘
A
person instituting any proceedings may at any time before the matter
has been set down and thereafter by consent of the parties
or leave
of the court withdraw such proceedings, in any of which events he
shall deliver a notice of withdrawal and may embody
in such notice a
consent to pay costs; …’
[12]
De Leef
Family Trust & others v Commissioner for Inland Revenue
[1993] ZASCA 46
;
1993 (3) SA 345
(A) at at 358C-D
[13]
Act
No 88 of 1984.
[14]
Santam
Insurance Limited v Meredith
1990
(4) SA 265
(Tk) at 269.
[15]
Nedbank
v Van Zyl
[1990] ZASCA 12
;
1990
(2) SA 469
(A) at 476.
[16]
The marital power was abolished in terms of
s 11
of the
Matrimonial
Property Act.
[17
]
Section
15(3)
(b)(i)
of the
Matrimonial Property Act.
[18
]
Act
No
24
of 1936.
[19]
Kellerman
NO v Van Vuuren & others
1994 (4) SA 336
(T) at 337.
[20]
Van
Schoor’s Trustees v Executors of Muller
(1858) 3 Searle 131
at 137.
[21]
Kellerman
at
338I; see also
Klerck
and Scharges NNO v Lee & others
1995
(3) SA 340
(SE) where Melunsky J criticised a contrary finding in
Boland
Bank Bpk v Du Plessis
1995 (4)
SA 113 (T) as De Klerk J had not referred to Voet 42.8.16, stating
the proposition that ‘not to acquire is
not to alienate’.
These decisions have been criticised by Professor Sonnekus in his
article JC Sonnekus ‘
Adiasie,
insolvensie en historiese perke aan die logiese’
(1996) TSAR 240
as reflecting the position in a system of universal
succession which obtained when Voet wrote and which is not in accord
with
the present day position. Like Goldblatt J, I am however
not prepared to disturb the statement by Voet even confined to the
proposition that ‘not to acquire is not to alienate’.