Fritzsche v Booysen (14155/2014) [2021] ZAWCHC 16 (5 February 2021)

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[2021] ZAWCHC 16
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Fritzsche v Booysen (14155/2014) [2021] ZAWCHC 16 (5 February 2021)

THE REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:  14155/2014
In
the matter between:
ILLONA
FRITZSCHE

Plaintiff
and
WARREN
HUGH BOOYSEN

Defendant
Coram:  Bozalek J
Heard:  18, 22 –
25; 29 June 2020; 22 July 2020; 2, 25 - 26 November 2020
Delivered:
5 February 2021
JUDGMENT
BOZALEK
J
[1]
In this trial action the plaintiff seeks the setting
aside of an
agreement entered into between herself and the defendant as well as a
power of attorney granted in the latter’s
favour and, pursuant
thereto, payment in the amount of R1,843 360.19 together with
interest.
[2]
The action was initially instituted by the plaintiff
in August 2014
and came to trial in June 2020. Evidence was heard over a period of
seven days but was then postponed when the plaintiff
amended her
particulars of claim at a late stage. Further evidence was heard on 2
November 2020 before argument was heard on 25
and 26 November 2020.
The defendant was legally represented up until the stage that the
further evidence was heard whereafter he
represented himself. After
argument was delivered in court the defendant submitted further
written argument which I considered
as well as a reply thereto from
the plaintiff’s legal representative.
Background
[3]
The contract which the plaintiff seeks to set aside
(‘the
agreement’ or ‘the plot agreement’) was concluded
between her and the plaintiff on 7 September 2011.
In terms thereof
the plaintiff undertook to pay the amount of R1 850 000 to the
defendant, being her half share of the proceeds
of the sale of a
property in Namibia, whereupon he would reimburse to her the amount
of R740 000 within four days. The power of
attorney which the
plaintiff seeks to set aside was a general power of attorney
concluded by her in favour of the defendant on
the authority of which
he withdrew the monies in question from the plaintiff’s bank
account.
[4]
The plaintiff and the defendant are related to
one another by
marriage, the defendant having been married to the plaintiff’s
late sister, Chantal Patricia Booysen, (whom
I shall refer to as
‘
Chantal’
). In late 2010 the defendant, a
businessman with a Namibian background, was appointed as executor to
the estate of the late Mr
Hartmut Fritzsche (whom I shall refer to as
‘
Hartmut’
) who was resident in Namibia and who
passed away on 30 September 2010. Hartmut was the father of the
plaintiff and Chantal who
were beneficiaries under their late
father’s will. The property in question did not form part of
the deceased estate although
it was referred to in Hartmut’s
will. When he died the property was owned by his stepmother Mrs Marga
Geiger, now deceased.
Following Hartmut’s death she sold the
property and instructed her attorneys to divide the proceeds equally
between the plaintiff
and Chantal, her two step-granddaughters.
[5]
The plaintiff instituted her claims in the alternative,
the first
basis being that the contract was concluded under duress, the second
being that the defendant misrepresented the facts
in relation to the
proceeds of the sale of the property thereby inducing the plaintiff
to sign the agreement, and thirdly, on the
assumption that the
agreement was valid, it was pleaded that the defendant had acted
contrary to its terms by withdrawing all the
money and failing to
repay the R740 000 which he was contractually obliged to do.
[6]
In the course of the run up to the trial and subsequent
thereto the
pleadings filed on behalf of both parties were repeatedly amended. At
an early stage the plaintiff abandoned her claim
based on
misrepresentation. At the conclusion of the defendant’s case
the plaintiff sought and was granted an amendment whereby
she pleaded
in the alternative to the duress claim that she had been unduly
influenced by the defendant to conclude the agreement
and that, but
for such undue influence, she would not have signed the agreement nor
the power of attorney, the conclusion of both
of which were
prejudicial to her.
[7]
In respect of her claim based on duress alternatively
undue influence
the plaintiff pleaded that the defendant had threatened the plaintiff
that if she failed to cooperate with him
(by concluding the
agreement) he would approach the Namibian police and lay charges
against her for theft of certain assets falling
within Hartmut’s
estate. He furthermore threatened that he would inform Mrs Geiger
that the plaintiff had stolen from her
stepson’s (Hartmut)
estate. It was further pleaded that the defendant had a propensity to
threaten the plaintiff, had done
so previously and that he had
informed the plaintiff that he would not proceed with such threats on
condition that she agreed to
receive only 20% rather than 50% of her
proceeds of the sale of the property; the plaintiff, acting under
duress alternatively
having been unduly influenced by the defendant
as above set out, duly signed the agreement and the power of
attorney.
[8]
In his plea the defendant admitted the conclusion
of the agreement
with the plaintiff and the power of attorney which allowed him to
give effect to its provisions but denied all
allegations that the
plaintiff had concluded the agreement under duress or having been
unduly influenced by him. He further denied
that he had issued any
threats against the defendant. In his initial plea the defendant
pleaded:
i.
that the agreement followed an oral agreement between the plaintiff
and Chantal in terms of which the proceeds of the sale of the

property were to be divided on a 20/80% basis in favour of Chantal;
ii.

that the agreement was concluded between him and the plaintiff in
their personal capacities and merely to put in writing the terms
of
the oral agreement reached between the plaintiff and Chantal;
iii.

that the withdrawals which he made from the plaintiff’s bank
account were with her full knowledge and consent;
iv.

that an amount of R340 361.23 of the monies so withdrawn were repaid
to the plaintiff;
v.
that he admitted owing the balance of R399 638.77 to the plaintiff
and tendered her payment thereof and,
vi.

that he had withheld further payments to plaintiff in the bona fide
but mistaken belief that the balance owing to her could be
used to
compensate for plaintiff’s ‘
misappropriation of assets
in the estate of the late Hartmut Fritszche’
.
[9]
In addition the defendant raised two special pleas
i.e. misjoinder
and non-joinder alleging in the first instance that the plaintiff had
failed to join the defendant in his capacity
as executor of Hartmut’s
estate. In this regard he alleged that the agreement was concluded by
himself in his capacity as
executor of Hartmut’s estate. In his
plea of non-joinder the defendant averred that he administered the
funds on the plaintiff’s
behalf in terms of the power of
attorney and that these funds were transferred to Chantal, the
defendant’s wife (and plaintiff’s
sister). Accordingly,
he alleged, if the Court should find that the agreement was indeed
void or voidable as pleaded by the plaintiff
that any claim lay
against the executor of Chantal’s estate.
[10]
In his amended plea the defendant pleaded:
i.

that of the total proceeds of the sale of the property Chantal
arranged directly with the purchasers for advance payments totalling

N$800 000 to be paid into her own personal bank account;
ii.

that of the N$1, 443,360.19 paid into the defendant’s bank
account he paid the full amount, save for R10 915.67, to Chantal’s

Money Market account;
iii.

that, regarding threats, he ‘
may have’
threatened
to take certain steps against the plaintiff on occasion in an effort
to protect his own private property and/or to motive
(sic) them to
act in the interest of Hartmut’s estate but denied that he ever
threatened the plaintiff in order to coerce
her into providing a
benefit for him or for Chantal to which they were not entitled;
iv.

a denial that Mrs Geiger had divided the proceeds of the sale of the
property on a 50/50 basis between the plaintiff and Chantal;
The
issues
[11]
Clearly the primary issue is whether the plaintiff concluded the
agreement
forfeiting part of her share of the proceeds of the sale of
the property under duress or as the result of undue influence.
[12]
Assuming the above question is answered in the favour of the
plaintiff the
next issue is whether the plaintiff was initially
entitled to 50% of the proceeds of the plot. If this question is
answered positively
the next issue is the extent to which the
defendant is liable to the plaintiff for any shortfall in the funds
which she received
from the proceeds of the sale of the plot.
The
evidence
[13]
The plaintiff gave evidence and called her step-sister, Ms Tammy
Coetzee as
a witness. The defendant testified but called no
witnesses.
Ms
Illona Fritzsche
[14]
Plaintiff testified that her highest educational qualification was
Grade 9
and that she presently ran a small cleaning company. She had
however worked for her father, Hartmut, for many years in his
business,
BOCO Services. Her father died on 30 September 2010 and she
had been living with him on a plot in Brakwater, an area just outside

Windhoek. At the time she had been involved in a long term
relationship with one, Daleen Vermeulen (‘Daleen’). The

plot at 32 Brakwater occupied by her father and herself was owned by
Mrs Marga Geiger, her step-grandmother who had two sons, Hartmut
and
Helmut. As mentioned earlier the plaintiff’s full sister was
Chantal and her half-sister was Tamar (Tammy) Coetzee. In
terms of
Hartmut’s will he bequeathed 50% of his business and holiday
home situated at Wlotskasbaken, Swartkopmund to Chantal,
25% to the
plaintiff and 25% to Daleen. The remainder of his estate was to be
divided in equal shares between the three heiresses.
[15]
Plot 32 Brakwater 48, Windhoek (‘the property’) lies at
the heart
of the dispute between the parties and was the subject of
the following clause in Hartmut’s will:
‘
4.1
I hereby bequeath my plot number 32 Brakwater number 48, Windhoek to
my daughter Chantal … I
hereby place on record that the said
property is presently still in the name of Marga Geiger and I have an
undertaking that the
said property will be transferred by her to me
in the event of her death. However, in the event that I should die
before Mrs Geiger
the understanding
is that such
property will be transferred to (Chantal) upon Mrs Geiger’s
death’.
[my underlining]
[16]
It is common cause that Hartmut predeceased Mrs Geiger who passed
away in 2019
some seven or eight years after she sold the property.
The plaintiff was referred to an invoice from attorneys in Windhoek
dated
29 November 2011 which indicated that the property was sold for
N$3 900 000.00 and that the nett proceeds were N$3 686 720.38.
According to this invoice N$800 000.00 was ‘
paid already
before registration of the property to Chantal and Illona’
by
the purchaser and that thereafter half portions of the balance were
paid to the account of Chantal and Illona in the sums N$
1 443
360.19, respectively. The plaintiff testified that she did not
receive any part of the N$800 000.00 nor, save for some R10
000.00,
any part of the N$1 443 360.19.
[17]
The plaintiff testified that she was upset from the outset to only
receive
a 25% share of Hartmut’s business and the holiday home
as she had devoted 22 years of her life to working in the business

and building the house on the property as well as the holiday home.
She felt it was unfair that Chantal would receive much more
than her.
[18]
As previously mentioned the defendant was appointed as executor to
Hartmut’s
estate and he immediately set to work to wind up the
estate. Since he and Chantal lived in Cape Town he did this at long
distance
although it seems he made regular trips to Namibia. From the
plaintiff’s perspective the process of winding up her late
father’s
estate did not go smoothly. Numerous difficulties
arose between her and the defendant. According to her he would
withhold information
from one or more of the heiresses and have
conversations with certain of them without the knowledge of the
others.   He
would also make financial arrangements which
in her view favoured Chantal, his wife, and were prejudicial to her.
In or about May
2011 the plaintiff called her grandmother, Mrs
Geiger, and became aware of the latter’s intention to sell the
Brakwater property
and divide the proceeds equally between herself
and Chantal. Up to this stage Chantal’s expectation, in
accordance with the
non-binding provisions of Hartmut’s will,
was that the property would eventually devolve upon her alone or,
presumably, if
the plot was sold that she would receive the entire
proceeds.
[19]
The news that Mrs Geiger intended to split the proceeds between the
plaintiff
and Chantal was, initially at least, very poorly received
by Chantal. On 24 May 2011 the plaintiff emailed her half-sister, Ms
Coetzee, and advised her that Chantal was ‘
livid’
because she, the plaintiff, wanted half of the property’s
proceeds. The dispute over the property clearly caused the
relationship
between the two sisters to deteriorate but in July 2011
the plaintiff moved from Namibia to Cape town to reside with Chantal
and
the defendant. There were a number of reasons for the plaintiff
moving and one of them was an attempt on the sisters’ part
to
reconcile with each other following the various disputes which had
arisen in relation to Hartmut’s estate.
[20]
The plaintiff testified that before leaving Namibia she had sold
certain scrap
metals belonging to the business. Her reasons were
two-fold in that she felt hard done by the terms of the will and,
furthermore,
no longer had any form of income. Furthermore, her
relationship with Daleen had ended – the latter having moved to
Pretoria
and a subsequent relationship with another woman having also
ended.
[21]
On 7 September 2011 Chantal had invited the plaintiff to go out for
breakfast
and she had agreed thinking that it would only be the two
of them. It transpired, however, that the defendant joined them and
they
drove together in his car to the Durbanville Spur. There the
defendant brought his laptop into the restaurant and in short order

informed the plaintiff that Daleen had made an affidavit regarding
goods which had been removed from the Hartmut’s business
by the
plaintiff after his death and sold. He stated that Daleen wanted to
know the value of the materials or tools which the plaintiff
had
hidden in containers. This was a reference to precision tools which
had not been included in the stocktaking but which the
plaintiff had
hidden in a container and which were over and above the scrap metal
referred to earlier. After being pressed by the
defendant the
plaintiff eventually gave a value to these tools in an amount of
approximately R150 000. After this topic had been
discussed the
defendant told the plaintiff that he had a proposal for her, namely,
that he would give her 20% of the proceeds of
the Brakwater property
(i.e. instead of 50%) which amounted to N$740 000. He told the
plaintiff that if she did not agree to this
proposal he would hand
her over to the Namibian police for theft of the scrap metal that she
had stolen from the property. The
defendant added that she would then
never be able to go back to Namibia because she would be apprehended
by the police and, furthermore,
that he would inform Mrs Geiger that
she had stolen from the estate which would put her in a bad light
with her grandmother.
[22]
The plaintiff testified that she had believed the defendant’s
threats
because the defendant and Chantal wanted her money and knew
where they had her. She was also flustered. She agreed to everything

that the defendant asked. The defendant then immediately went outside
to make a phone call and returned saying that they must leave

immediately. No breakfast was ordered, the bill for coffee was paid
and they left. The defendant then drove to Madelyn Incorporated,
a
firm of attorneys a two-minute drive away in Durbanville. The
defendant told the receptionist that they were there to see Ms

Madelyn Kruger for what appears to have been a pre-arranged
appointment. In the ensuing consultation the agreement was read to

her although the plaintiff testified that she took little notice of
what was being read. The parties to the agreement were the
plaintiff,
referred to as ‘
the beneficiary’
and the
defendant, referred to as ‘
the executor’
. In it
she undertook to pay the amount of R1 850 000.00, being half the
proceeds of the sale of plot 32 Brakwater, to the executor
into an
unspecified bank account. The executor undertook to reimburse the
beneficiary with the amount of R740 000.00 and to pay
the balance of
the proceeds to Chantal. All this was to be done within four days of
him receiving the full payment from the beneficiary.
Chantal was
asked to wait outside while the agreement was read to her and signed
by the parties.
[23]
The plaintiff testified that she had never previously discussed
taking a 20%
share of the proceeds of the sale of the property. At no
stage had she reached any such oral agreement with Chantal. When she
signed
the agreement she was still taken aback by what had happened
at the Spur. Asked why the defendant was defined as executor her
answer
was that the defendant ‘
used that position to his own
power, his own discretion’
. After she had signed the
agreement the defendant told her he would throw his Mercedes Benz
vehicle into the deal. The plaintiff
testified that at the same
meeting she had signed a general power of attorney in favour of the
defendant. This document had been
read to her in full before she
signed it but again she had taken little notice of its content. The
reason why she had signed the
power of attorney was because she
understood it was necessary for the defendant in order for him to run
her finances for her. Two
days after signing the agreement and power
of attorney the defendant presented the plaintiff with an agreement
entitled
‘Agreement pertaining to equalisation between the
heirs of the estate late HH Fritszche’
. According to the
agreement its purpose was to record the transactions pertaining to
the advances and contributions to Hartmut’s
business and the
heiresses’ debts related to the estate and between the three
heiresses. The plaintiff testified that a schedule
to the agreement
reflected advances made to her by the defendant and also a deduction
from her share of R180 500.00 for the scrap
metals which she had
misappropriated.
[24]
By November 2011 the plaintiff had moved out of the defendants’
home
and was living separately. On 8 November 2011 the defendant
picked her up from her home and began driving her to unknown
destination.
When she asked him he told her that the purpose of the
trip was for her to open a special bank account at FNB in Milnerton.
She
responded stating that she already had an FNB account but he said
that it was a special account that had to be opened. He did not

explain in what way it was special or why the plaintiff needed the
account.  At FNB she signed documentation necessary to
open the
account. She identified one such item of documentation as being a
delegation of authority in which she authorised the
defendant to
operate her account without any restrictions.
[25]
The plaintiff later discovered that the account which had been opened
in her
name was a Money Market account. She testified that she had
not been given copies of any of the documents she signed either at
the bank or, two months previously, at the offices of Madelyn Inc.
[26]
In April 2012 Chantal suffered an aneurysm and passed away on 17
April. In
July 2012 the defendant had approached her out of the blue
with what he said were three proposals from Daleen’s lawyers.
However, she was unable to even explain these proposals in her
evidence because, according to her, the defendant was ‘
all
over the show’
. She could recall him telling her that she
had to repay R600 000.00 into Hartmut’s estate in which event
the defendant told
her he would then give her R40 000.00 in full and
final settlement. All these proposals came to nothing, however. By
this time
the plaintiff was unemployed and did not know what to do.
She made contact with her half-sister, Tammy Coetzee, and explained
her
situation. Tammy invited her to move in with her and began to try
and get to the bottom of where the plaintiff found herself
financially.
One of the first things that Tammy asked her was where
her half share of the proceeds of the sale of the property was and
her answer
had been that she did not know. Tammy began to make
enquiries and to obtain copies of all the documents which she had
signed over
the past few months. She also arranged for the plaintiff
to see an attorney.
[27]
The plaintiff was shown a statement from her FNB money market account
which
reflected that the amount of R1 443 360.19 had been credited to
it on 29 November 2011 as being part of the proceeds of the sale
of
the Brakwater property. On the same day internet withdrawals of R850
000.00 and R6500.00 were made and, on the following day,
a further
withdrawal of R576 000.00. This had left a balance of just less than
R11 000.00. The plaintiff testified that she had
not effected these
withdrawals and had not even received notifications thereof. She had
never received the R740 000.00 she had
been promised by the defendant
in terms of the agreement. At some stage the defendant had telephoned
her from the airport prior
to him, Chantal and the rest of their
family departing on a holiday trip to America and had told her to
close the money market
account and transfer the balance, some R10
000.00, to her own account.
[28]
The plaintiff was also shown a schedule drawn up by the defendant
entitled
‘Advances of Proceeds to agreement by Defendant’
which appeared to reflect a record of monies advanced to her between
October 2010 to July 2012 in respect of various living expenses
which
she had incurred totalling R340 361.23. The plaintiff testified that
these were indeed advances made to her by either Chantal
or the
defendant over this period in respect of living expenses. She stated
that she understood that these were advances to her
out of the R740
000.00 promised to her in terms of the agreement. Under cross
examination the plaintiff readily conceded that she
had done wrong in
selling the scrap and keeping certain tools in a room or a container
with a result that they had been overlooked
in the estate’s
stocktaking. It was put to the plaintiff that the existence of the
containers had only become known to the
plaintiff in about February
2012 but she stated that she recalled speaking about the value of the
contents of the containers at
the Spur meeting. It was further put to
the plaintiff that an agreement between her and Chantal concerning
their shares of the
plot proceeds had been reached at least a week
before the Spur meeting but this was strongly denied by the
plaintiff. The plaintiff
was also shown an email dated 2 December
2011 where the defendant instructed Madelyn Kruger to change a draft
agreement to provide
for the plaintiff to receive 20% of the proceeds
i.e. R740 000.00. The relevant instruction reads:
‘
1.
Please amend the total per 2.1 to 740 (R740 000). Chantal has decided
to issue her 20% of the
proceeds as Illona is one of five direct
descendants hence 20% of R3.7mil, leaving her with R740 000 of total
proceeds of plot.’
[29]
In the same email the defendant made arrangements with the attorney
‘
to have Chantal, Illona and myself come in and sign all
agreements’
on the day before they were in fact signed i.e.
7 September 2011, the day of the meeting at the Spur.
[30]
The plaintiff testified that she knew nothing of any share being
based on her
being one of five direct descendants of the deceased. It
was put to the plaintiff that no threats were made to her at the Spur
meeting and that even if they were, they were lawful. It was further
put that the purpose of the meeting was to give her a share
of the
proceeds rather than to take anything away from her. It was also put
that the defendant had paid all of the advances recorded
in the
schedule to her and that he admitted owing her the difference between
their total and the amount of R740 000. The plaintiff
appeared to
accept this proposition in that she said she never thought those
monies were gifts.
[31]
Also put to her was documentation addressed to the Namibian
attorney’s
conveyancing secretary instructing that half of her
proceeds be paid into the money market account opened on her behalf
by the
defendant. The plaintiff explained that many documents had
been put in front of her for her signature and she could well have
signed
the document. She testified that she had put considerable
trust in the defendant and that she herself had no financial
expertise.
She testified also that she had been devastated by what
had happened at the Spur meeting. When the defendant had later called
on
her unexpectedly (after Chantal’s’ death) and made the
proposal that he would pay her a maximum of R40 000 he had said
that
they were no longer blood related which had made her very angry. In
further cross examination it emerged that after some years
the
defendant had been relieved of his executorship of Hartmut’s
estate by the Master of the Namibian High Court and that
she, the
plaintiff, was eventually appointed as executor. She had instructed
attorneys to be her ‘
agents’
as executor (and at
another stage had also appointed a Windhoek Trust company in this
regard).
[32]
The plaintiff was cross examined at some length about her handling of
the estate
but little of this is or was directly relevant to the
issues in dispute in this matter.  By the time her evidence was
concluded
the estate was still far from being finally wound up.
Ms
Tamara Coetzee
[33]
Ms Coetzee testified that the plaintiff and Chantal were her
half-sisters and
all three shared the same mother. Hartmut had been
her step-father and the defendant was her brother-in-law. She had
been very
close to Chantal who had been her ‘
best friend’
.
The witness had not been a beneficiary of Hartmut’s will but
soon after his death both the plaintiff and Daleen had made
her aware
that they were unhappy with the way that the defendant was winding up
the estate. Daleen had sent her bank statements
and she had seen that
large amounts were transferred out of the estate bank account by the
defendant. She herself had some experience
of winding up a deceased
estate in that she had singlehandedly wound up her father’s
estate in 2000 inter alia by obtaining
a book explaining the process.
After the large withdrawals were drawn to her attention she had told
Chantal that she was alarmed
by what she had seen because there were
creditors to be paid and two beneficiaries and she had suggested to
the defendant that
he repay the monies to the estate bank account. At
a later stage the defendant had given her a copy of his draft
liquidation and
distribution account. She had noted that the
defendant had been apportioning each invoice pro rata to the
beneficiaries, making
for a very confusing if not incomprehensible
account.
[34]
In May 2011 the deceased’s brother, Helmut, had come to see her
and advised
that Marga Geiger was not happy with her son’s will
and in particular the notion that Chantal would get 100% of the
property
or its proceeds. Instead his mother’s plan was to sell
the property and split the proceeds between Chantal and the
plaintiff.
Ms Coetzee had told him that she thought that this was a
very good idea because it was a fair and equitable arrangement.
[35]
The witness was shown an email to her from the defendant dated 4 July
2011.
It reads in full as follows:
‘
Of course your
miscalculation was thinking the family would get over it.
Not Melissa, not
Kendra, not Chantal, not Terry, not Tiana, not Faith, not Warren
(the
defendant) …
Not anyone with principle was ever going to
step back and let you piss on a man’s dying wish and then
miraculously let you
back in our lives. We are of better stock, and
no it was never about the money … We don’t need it. He
was our father,
father in law, grandfather and a man we ALL loved and
your demons did not belong in that domain … he did us no
wrong.
Am sure this was not
your first misjudgement, I just hope it’s you(r) last.
For what it’s
worth … Good luck Tam.’
[36]
The witness testified that she experienced the email as
excommunicating her
from the defendant’s entire family. Asked
what was the ‘
it’
which she had mistakenly thought
the family would get over, Ms Coetzee testified that she understood
this to be a reference to
Hartmut’s will and in particular the
treatment of the Brakwater property. She believes that the defendant
thought that she,
Coetzee, had something to do with Marga Geiger’s
plan to divide the proceeds of the sale of the property equally
between
Hartmut’s two daughters rather than letting Chantal
have the entire proceeds. This had become a bone of contention. After

Hartmut’s death in 2010 she had visited Chantal who was very
excited and had told her that she would get 100% of the plot
and 50%
of the business and of the holiday home together with a third of the
residue of the estate. She, Coetzee, had been shocked
to learn how
little the plaintiff was inheriting since the deceased’s
business was barely limping along. Chantal had also
told her that
‘
they’
had decided to give Illona R500 000.00. She
had experienced the email referred to above as a very nasty one. The
defendant had
warned her to stay away from his family because she was
interfering with the winding up of Hartmut’s estate. The people
referred
to in the email were not only the defendant’s wife and
daughters but his brother Terry and his wife as well as his mother.
[37]
Before the dispute arose they had all been on very good terms and had
spent
much time together. She had ‘
adored’
Chantal
and her children. Coetzee testified that Hartmut had not been a well
man for some time before his death and had been trying
to sell his
business for at least ten years prior thereto but could not find a
buyer. From June 2011 when she has been ‘
excommunicated’
by the email, until mid-April 2012 when Chantal had unexpectedly
fallen ill and died, she had nothing to do with the defendant’s

family.
[38]
The plaintiff had made contact with her in early July 2012 and told
her that
her rent had not been paid, that she had to vacate her flat
and that she had no money. She had asked to move in with Tammy and
she had agreed to this. She had asked the plaintiff where her share
of the proceeds of the Brakwater property sale was but the plaintiff

had been unable to tell her and seemed to know very little about the
matter. Ms Coetzee had then phoned Helmut and learnt that
the
property had been sold in September 2011. She obtained details of the
transferring attorney and contacted an attorney on behalf
of the
plaintiff. Through these steps the documentation from the Windhoek
transferring attorneys had come to light and details
of the bank
accounts into which the proceeds of the sale had been paid.
[39]
The plaintiff had been unable to account for any monies she had
received but
recalled that she had signed banking documentation at
the behest of the defendant. Ms Coetzee then made enquiries from FNB
and
learnt that the Milnerton money market account has been closed.
She obtained the bank statement referred to earlier and upon further

enquiry learnt that the withdrawals had been made by the defendant.
She had been given a copy of the delegation of authority signed
by
the plaintiff in favour of the defendant. Upon further questioning
the plaintiff recalled signing documents at the defendant’s

behest in terms of which she would receive only a reduced portion of
the plot’s proceeds. Ms Coetzee then learnt that documents
had
been signed at the offices of Madelyn Incorporated in Durbanville but
that the plaintiff had not received any copies thereof.
She sent the
plaintiff to the law firm to obtain copies but she returned with only
a copy of the power of attorney. The plaintiff
had clearly not
understood the powers that she had given to the defendant in terms of
the power of attorney. She sent the plaintiff
back to the law firm to
obtain a copy of the agreement which she had signed and only after
some difficulty had the plaintiff eventually
obtained a copy of the
disputed agreement. When she read the agreement Ms Coetzee told the
plaintiff that she did not understand
why she had given R1.1mil of
her share away. The plaintiff explained that the defendant had
threatened her with the police and
reporting her to the Master in
Namibia for stealing assets out of the estate. There had been a
breakfast meeting at the Spur where
she had been told that if she did
not agree to take only 20% of the proceeds the defendant would report
her to the authorities
and would tell her Namibian family that she
had stolen from the estate.
[40]
Asked for her impression of the plaintiff’s personality Ms
Coetzee testified
that the plaintiff could be outgoing and friendly
but had a ‘
very small heart’
in the sense that she
was intimidated by official processes. She also did not like people
to think that she did not know what was
going on so she tended to go
along with things not knowing or understanding what exactly was going
on.
[41]
In 2013 Ms Coetzee discovered that the defendant had been removed as
executor.
This was after the Master had written to the defendant
advising that if certain steps were not taken within 30 days he would
be
removed as executor but had received no response. The witness
referred to a lengthy communication from the defendant to the
plaintiff’s
legal representatives in approximately February
2013. Under the heading
‘Current position of the executor
late estate CP Booysen’
he wrote inter alia that unless a
meeting was held by a certain date he would instruct his legal
representative in Namibia to:
1.
disclose all evidence of criminal conduct by the plaintiff to the
Master of the High
Court of Namibia;
2.
report the plaintiff’s criminal activity to the Namibian police
and have her
and others charged with ‘
asset theft and cash
fraud’
;
3.
commence civil action against all parties, including Ms Coetzee, for
punitive damages
as a result of losses suffered by Hartmut’s
estate which he estimated to be in excess of R2.5mil.
[42]
In the same communication and referring to the plot agreement the
defendant
stated that he ‘
was not a party’
to such
written agreement which had
been ‘signed by plaintiff and
Chantal’
and witnessed by attorneys.  He added ‘
my
only involvement was to administer
(plaintiff’s)
share
and a power of attorney granted to me by her and the attached
analysis reflects such administration. Unfortunately, the claims

against the estate as well as the totals withdrawn to date have
resulted in an additional debt and the total is accordingly
exhausted’
.  In the communication he proposed a
settlement which, taking account of R740 000 initially owed to the
plaintiff in terms
of the agreement and the advances made to her
totalling R340 361, would have left the plaintiff owing R23 000 to
the ‘
estate’
.
[43]
In another lengthy email written to Ms Coetzee in December 2011 i.e.
before
Chantal’s death the defendant states that the plaintiff
and Chantal were currently ‘
the best of friends’
and
added ‘
Chantal has as per (the deceased’s) wishes
allotted a material part of the plot proceeds to her and she has
granted me power
of attorney to administer it’
. In what
appears to be an explanation of his earlier ‘
letter of
excommunication’
he wrote ‘
I simply had to take
you out of the mix at the time to ensure the estate could move
forward and the truth could come out, after
all, you were defending
the indefensible and gave no one a forum to debate, creating a
stalemate’
. In the same communication of 8 July 2011 the
defendant further stated that the Master insisted that the estate
claim against all
parties to ensure that the only heir who had
‘
nothing to do with this’
, being Chantal, was
sufficiently remunerated her share of R1.4mil of the initial
appraised value of the business. When questioned
by the Court to how
this could have taken place when the estate had not been wound up, Ms
Coetzee stated that the defendant had
withdrawn all the cash from the
estate bank account. Reference was made by the defendant in the email
to a Court order which Ms
Coetzee was unable to locate in the estate
file. A further concern in relation to how the defendant had acted as
executor was brought
to her attention in an email forwarded to her by
Daleen in March 2011 with a subject heading ‘
Nou word ek
gedreig’
. In response to Daleen’s request that an
offer to purchase the deceased’s business be put in writing,
the defendant
respondent stating that the business would now go on
auction and he referred to a vehicle which, if it was not placed ‘
op
‘n blok’
, on the same day that he and Chantal would
phone the police.
[44]
Ms Coetzee testified that after the defendant’s removal as the
executor
the plaintiff had been appointed as executor to Hartmut’s
estate in 2014 as there was no one else who could be appointed.
Ms
Coetzee had tried to get appointment as executor in order to wind up
the estate but the Master had wanted N$2mil in surety from
her which
she was not able to meet. The plaintiff was not required to provide
security and upon appointment had instructed a trust
firm to wind up
the estate which it had commenced doing so in 2014. In 2016 that firm
had declined to act any further in the matter
due to various
threatening letters and emails which they had received from his
defendant and his attorneys.  As at the date
on which Ms Coetzee
testified the estate had still not been wound up as the defendant had
been recalcitrant in providing bank statements
which were needed in
order to verify creditor payments made from Chantal’s account
to the benefit of the estate.
[45]
Ms Coetzee expressed the opinion that the manner in which the
defendant had
administered the deceased estate was incorrect in a
number of respects and that the numerous documents and agreements
which he
had placed before the heiresses had been the start of the
confusion and the problems between the parties. She stated that she
would
not necessarily describe the defendant as dishonest but he
often went around threatening people. In Ms Coetzee’s view the

description of the defendant as the executor in the plot agreement
concluded between himself and the plaintiff was calculated to
force
the plaintiff to sign the agreement in combination with the threats
made by him to have the plaintiff charged with theft
of assets
falling within the estate.
[46]
Under cross examination it was put to the witness that the defendant
and Chantal
had been upset by her criticism of how he handled the
estate. It was further put that the defendant was angered because
she, Ms
Coetzee, had refused to accept the will but her response was
that it was not for her to accept the will or not. It was put to the

witness that it was only in January 2012 that the defendant became
aware of the plaintiff’s theft of equipment from Hartmut’s

business which equipment had landed up in two containers. Ms Coetzee
referred however to the defendant’s lengthy email of
8 December
2011 wherein he stated that by July/August of 2011 ‘
the full
picture emerged’
i.e. covering both the scrap and metal and
the hidden equipment stored in containers. It was also put on behalf
of the defendant
that he was contacted by an attorney, one Mr Chris
Gouws, of the Windhoek transferring attorney who advised him that
although Mrs
Geiger had signed the deed of sale he had a problem
inasmuch as the deceased’s will was incompatible with Mrs
Geiger’s
instructions and he believed that the issue should
either be referred to arbitration between the sisters or before the
proceeds
of the sale were paid out. It was put further that the
defendant conveyed this to Chantal and that as a result she and the
plaintiff
chose to ‘
sort it out themselves’
and
eventually arrived at the 80/20% arrangement, something in which the
defendant had not been not involved.
[47]
Much cross examination was directed to the handling of the deceased’s

estate by the plaintiff, with the assistance of the witness, after
the defendant was removed as executor. In particular, the issue
of
how the deceased’s holiday home at Wlotskasbaken was disposed
of was dealt with at some length. Most if not all of this
cross
examination is of no direct relevance to the issues in dispute but it
did incidentally reveal the defendant’s continuing
and
longstanding dissatisfaction that his late wife or her estate had not
received her/its due entitlement from the estate of the
late Hartmut
Fritzsche.
Warren
Hugh Booysen
[48]
The defendant described himself as an experienced businessman with a
financial
background. He commenced his career with five years of
clerkship at a major accounting firm. The defendant conceded, in
relation
to the plaintiff’s alternative claim C, that the
amount of R399 638.17 remained owing by him to the plaintiff. He
testified
that the amount of N$800 000.00 comprised two amounts:
N$200 000.00 and N$600 000.00 which were advance payments from the
purchaser,
Mr NJ Swart, to his late wife Chantal. These amounts had
been paid on 14 October and 25 November 2011 and had been arranged
directly
by Chantal. These payments were deposited directly into
Chantal’s account. He testified that the plaintiff was not
entitled
to half of the advance payments of N$800 000.00 since these
had gone directly into Chantal’s account by virtue of the
arrangements
she had made. The defendant later conceded, however,
that by virtue of these advances and in accordance with Mrs Geiger’s

wishes the N$800 000.00 advance received by Chantal should have been
deducted from her 50% of the proceeds of the sale of the Brakwater

plot so that the plaintiff received her full R1.8mil odd. He admitted
and had confirmed in his plea that Mrs Geiger’s instructions

were that half of the proceeds of the sale of the property were to go
to the plaintiff and Chantal respectively and that Mrs Geiger
had
given those instructions when she signed the deed of sale. He stated
however that he had got a phone call from the attorney,
Gouws, after
the deed of sale had been signed when the latter had stated that this
instruction had created a problem in that it
was at odds with the
will and had suggested an arbitration or that the two sisters ‘
sort
out’
the problem themselves. The defendant testified that
he immediately told Chantal that she and the plaintiff must sort out
the matter
and that thereafter he had deliberately stayed out of that
matter.
[49]
In response to a question from the Court the defendant stated that he
was not
aware that Mrs Geiger ever learnt that the proceeds were not
split equally between the sisters. He did not tell Mrs Geiger that

and to his knowledge neither did Chantal. Referring to the alleged
80/20% plot proceeds agreement the defendant testified that
he had no
involvement in it and only learnt of it from Chantal. The defendant
was informed by Chantal who ‘
made representations’
to him that she and the plaintiff had agreed on the percentage for
sharing the proceeds of the plot sale and it was those terms
which
were confirmed in the written plot agreement.
[50]
The defendant was asked to explain why the agreement reflected him as
a party
acting in his capacity as executor and his explanation was
that the attorney Madelyn Kruger had misunderstood the position to be

that the property fell within the estate. He was adamant that she had
not done this on his instructions. He confirmed that he had
taken a
general power of attorney from the plaintiff and later obtained a
delegation of authority from her to operate the bank
account which
she had opened under his directions. According to him it was their
common understanding that this would be the case
in terms of the
power of attorney, in other words, that he would administer the
plaintiff’s bank account and her funds.
[51]
He confirmed that he withdrew all but some R10 000.00 of the
R1.443mil paid
into that account from the proceeds of the sale of the
property and explained this on the basis of his understanding of the
disputed
agreement that he had to reimburse Chantal so that she
obtained her 80% share. He stated that he began to administer the
R740 000
which he understood to be due to the plaintiff by
administering that part of the R1.4mil and making advances to her
from his private
account. The defendant was referred to the schedule
of advances which he drew up and confirmed this as well as his ‘open
offer’ to pay her the balance of R399 000 which he still owed
her.
[52]
The defendant admitted that the breakfast meeting at the Spur took
place but
denied ever threatening the plaintiff. He did state,
however, that he had a schedule at that meeting reflecting an agreed
amount
of the cash sales in respect of the scrap and that he had
prepared this prior to the meeting and discussed it at the meeting.
His
evidence was that he intended to deal with estate matters at the
meeting while Chantal was there to discuss the property matter
upon
which the sisters had agreed to prior to the breakfast meeting. He
testified that he had been shocked when in August 2010
shortly before
Hartmut’s death the latter had advised him that Chantal was to
get 100% of the plot and was that he had been
‘
livid’
at this massive imbalance in favour of his late wife. However, he
always knew that Chantal ‘
wanted to give the plaintiff
something’
and that in fact 20% would be higher than the
R500 000.00 share for the plaintiff that he had heard of earlier.
[53]
Under cross examination the defendant gave an outline of his business
history
and responsibilities in Namibia. He regarded himself as a
business man with a financial background. In 2011 neither he nor
Chantal
had been employed and they simply enjoyed passive income.
Notwithstanding what he stated earlier regarding the share

which he always knew Chantal would give the plaintiff of the plot
proceeds, the defendant stated it was always his understanding
that
the plot fell outside the deceased’s estate and that Mrs
Geiger’s late husband had left the property to her to
deal with
as she saw fit and that she was free to deal with as she wished.
[54]
The defendant was aware that Chantal had requested the advances
totalling N$800
000.00 as contained in an email of 9 November 2011 to
the Windhoek attorney’s conveyancing secretary. The defendant
appeared
to recall that the advances were to finance a holiday for
the family to America. He conceded that the final payment that
Chantal
received should have been reduced by N$400 000.00 (to
reimburse the plaintiff for her half share of the advance payments)
and that
added to the payment which the plaintiff in fact received in
respect of her share of the proceeds.
[55]
Referring to the day of the Spur meeting the defendant confirmed that
Chantal
was requested to leave the attorney’s boardroom since
she was not required to sign the plot agreement. He further confirmed

that five days prior to the meeting he had emailed attorney Kruger to
amend the amount due to the plaintiff and confirmed that
a draft
agreement had previously been sent to him. He had, however, not
requested any amendment to remove to what he explained
was a mistaken
reference to his capacity as being that of the executor. It was put
to him that he had been fully involved in the
substance of the plot
agreement and he denied this stating that he had merely conveyed the
amended amount.
[56]
When asked by the Court why as the executor he would need a power of
attorney
to account for any irregularities and the equalisation
account his response was that since the plaintiff was receiving money
soon
from the property sale and the disputed agreement he would be
able under the power of attorney to reimburse the estate or other

parties for her conduct in that regard. In other words,
notwithstanding the fact that the power of attorney was granted to
him
in his personal capacity he believed that he could use it to
reimburse the estate in which he was the executor and also to
acknowledge
indebtedness on the plaintiff’s behalf.
[57]
The defendant conceded that at the Spur meeting he had informed the
plaintiff
that he had a signed affidavit from Daleen relating to the
theft of scrap material by the plaintiff. In fact, in later evidence

it transpired that he had flown Daleen from Pretoria to Cape Town for
the specific purpose of obtaining that affidavit.
[58]
The defendant was asked to explain why he had taken the plaintiff all
the way
to Milnerton to open the money market account rather than
simply going to FNB in Durbanville and his answer was that he would
have
telephoned FNB to ask where he could open such an account and
they would have told him to go to the Milnerton branch. He confirmed

that it was he who wanted the plaintiff to open a money market
account despite the fact that she had an existing cheque account.
He
conceded, furthermore, that it was possible that he had arrived
unannounced at the plaintiff’s residence prior to opening
the
account and that the first time she had been aware of where they were
going was when she asked him this on the way to Milnerton.
The
defendant could not recall whether the plaintiff read through the
documents pertaining to the opening of a bank account but
conceded
that she would have had a sense of ‘
Warren is doing the
right thing here’
.
[59]
Even though the defendant’s evidence was that Madelyn Kruger
had incorrectly
assumed that the plot fell within the deceased’s
estate he confirmed that in an email to her on 2 December 2011 he
referred
to the property as a ‘
plot
(his wife)
inherited
in Brakwater …’
. The defendant conceded that the
agreement which he signed was sent to him and not to Chantal. He
furnished no explanation as to
why, if the core agreement was
concluded between his wife and the plaintiff, he had instructed
Madelyn Kruger to frame it as an
agreement between himself and the
plaintiff.
[60]
He testified further that he had informed Ms Kruger that he did not
want Illona
to have a bank account where she could ‘
operate
with impunity without my say so’
. When asked whether the
plaintiff understood that the defendant would be able to transfer all
of her funds into his private account,
he stated that he could not
speak to her frame of mind at that time. He conceded that in his
lengthy letter to the plaintiff’s
former attorney his reference
to an executor to the estate of his late wife was incorrect as no
executor had been appointed even
by 2013. He conceded further that in
his lengthy email of 8 December to Ms Coetzee, and which he knew she
would share with the
plaintiff, there had been a lot of
embellishment, exaggeration and misrepresentation inter alia in that
he had not disclosed anything
to the Master, that the Master had not
insisted that Chantal be compensated as an innocent party and that
there was no court order.
He admitted that he had drawn an agreement
relating to access to the deceased’s holiday house by the three
heiresses which
heavily favoured his wife and which was at odds with
the will itself. He stated that he had drafted the agreement based on
Hartmut’s
dying wishes but conceded that he had no notes or
memoranda in this regard. Nonetheless he stated that ethically he did
not agree
with the terms of that agreement.
[61]
The defendant was unable to explain why beneficiaries to Hartmut’s
estate
continuously signed agreements, allegedly with no objection
but shortly thereafter became extremely unhappy with the content of

the agreements. He denied ever bulldozing parties into signing
agreements. As to what was Ms Coetzee’s ‘
misjudgement’
or ‘
miscalculation’
, as referred to in his
ex-communication email on 4 July 2011, the defendant advanced
differing explanations. Firstly, he stated
that it was Ms Coetzee’s
refusal to sit around a table with her other two sisters but then
when pointed out that this was
not possible as the plaintiff was not
present in Cape Town he stated that it was in response to a
contentious phone conversation
he had with Ms Coetzee. When it was
put to the defendant that he perceived Ms Coetzee to be standing in
the way of his wife receiving
100% of the plot proceeds the defendant
ultimately conceded this stating that at that stage he considered
that Ms Coetzee was blocking
any negotiation.
[62]
He confirmed that his statement to the plaintiffs’ erstwhile
attorney
that he had not been party to the plot agreement was yet a
further incorrect proposition. When asked why the plaintiff would
only
accept 20% of the proceeds of the plot sale when she knew that
Mrs Geiger had instructed that she should share equally in the
proceeds,
the defendant stated that he was unable to speak the
plaintiff’s frame of mind. Notwithstanding his instructions to
Madelyn
Kruger regarding the form of the agreement he testified that
he had no idea that the plaintiff was agreeing to forfeit 60% of her

share of the profit. He testified on more than one occasion that,
although aware of the discussions between the sisters he wanted
to
stay out of them at all cost. The defendant went further and
testified that he believed that Chantal’s actions regarding
the
sharing of the plot proceeds were wrong but that he had signed the
agreement in order to ‘
cause and effect’
it. The
defendant was unable to explain why, if the equalisation agreement
was the main business on 7 September 2011, it was not
signed on that
day but only two days later.
[63]
The defendant was confronted with an affidavit by Mr Chris Gouws, the
Windhoek
attorney, responding to the plaintiff’s evidence that
Gouws had advised him of his concern that there was a conflict of
interest
between the instructions provided by Mrs Geiger and the
contents of the deceased’s will. In the affidavit Mr Gouws
stated
that he remembered all the parties to the transaction well,
that he would never suggest that parties refer a matter to
arbitration
and certainly had not done so in that case. He added that
he realised that his testimony could not be tested under cross
examination
but was unable to attend the trial timeously and did not
believe that he would be permitted to travel to Cape Town due to the
then
existing Covid-19 restrictions placed on the borders of both
countries.
[64]
The parties’ legal representatives agreed that Mr Gouws’
affidavit
could be received by the Court as evidence with the
defendant reserving his right to argue what it probative value should
be. The
defendant maintained his evidence that the telephone call
took place stating that he did not know why Gouws would depose to the

contents of the affidavit. The defendant remained adamant that he did
not agree with Chantal’s handling of the plot proceeds
stating
‘
I don’t agree with it, I didn’t agree with it
then and as sure as hell don’t agree with it in my office post
Chantal’s
passing. Just like I contend that the Wlotskas
agreement is a disaster I don’t agree with what happened here.
But I do very
clearly agree that Chantal was instructed by me that I
am not getting involved in this transaction’
.
[65]
He acknowledged that he owed the plaintiff at least R399 000.00 and
explained
that he had not paid this because he believes there is a
‘
refund’
due from the money owed to his late
wife’s estate. He conceded too that ultimately his offer to pay
the aforesaid sum to
the plaintiff was conditional upon her accepting
such sum in full and final settlement of her claims. He testified
that the approximately
R400 000.00 remaining and which was owed to
the plaintiff had been held in his personal account, no separate
account having ever
been opened. He did not concede that the
plaintiff was entitled to interest on the money owing to her and
which had been in his
possession some nine years.
[66]
The defendant agreed that at the relevant time the plaintiff was both
legally
and financially unsophisticated and was a rather naïve
person. He conceded that he never advised her to seek independent
legal
advice before signing any of the documentation which he placed
before her, whether as executor or otherwise. He also conceded that

the reason why the Windhoek attorneys were not instructed to simply
pay the R740 000.00 directly into the plaintiff’s account,
and
the remaining balance into Chantal’s account, was to ensure
that it appeared that the sisters were still receiving their
equal
half shares and so as not to notify the attorneys and in turn Mrs
Geiger that any other arrangement had been concluded. The
defendant
also acknowledged that, based on his own testimony, he had no direct
knowledge of the negotiations between the two sisters
and, his wife
having passed away, that the plaintiff’s evidence that there
was no agreement between them could not be contradicted.
Asked by the
Court ‘
how do we know that there was an agreement between
your late wife and the plaintiff’
his answer was ‘
I
don’t think we do’
.
Evaluation
of the witnesses
[67]
In keeping with her limited informal education the plaintiff came
across as
an unsophisticated person and unversed in legal and
financial matters. She answered questions as best she could but at
times it
was clear that she failed to comprehend certain questions
and proposals which were put to her. The plaintiff was relatively
straight-forward
in admitting her theft of assets from the estate
although at times one gained the impression that she was not entirely
forthcoming
about these matters. What was clear was that the
plaintiff was entirely at sea in dealing with the defendant in
matters relating
to the estate and the sale of the Brakwater
property. She was consistent in all the important elements of her
evidence despite
hostile cross examination.
[68]
As a witness Ms Coetzee stood in sharp contrast to the plaintiff. She
was obviously
intelligent, financially astute and well informed, if
not experienced, in relation to the winding up of deceased estates.
She impressed
as someone who had no interest in the subject matter of
the dispute between the plaintiff on the one hand and the defendant
and
his late wife on the other. In fact, it was clear that she felt
torn in that she had previously enjoyed a very close relationship

with Chantal. Her observations about the plaintiff’s
personality and why she was so easily influenced appeared to be
completely
on target.
[69]
Ms Coetzee displayed a sure grasp of the voluminous documentation in
the form
inter alia of agreements and emails. She was clearly not
someone who would be overwhelmed by the defendant and was more than
capable
of forming her own opinion and expressing it and sticking to
it.   She was even-handed in her evidence and gave no sign

of favouring either of her step-sisters. When it came to the question
of the plaintiff’s dishonesty in stealing assets out
of her
late father’s estate it was clear that this had never been
approved of by Ms Coetzee nor discounted by her. Ms Coetzee’s

evidence was clear, consistent and unshaken in cross examination. I
accept her evidence in full.
[70]
The defendant presented as an intelligent and articulate person who
was very
well versed in financial matters and accounting. He was
extremely loquacious as manifested not only in his evidence but in
the
stream of documentation and lengthy emails which were authored by
him and found their way into the record. In evidence the defendant

came across as a man of some charm who at one and the same time
appeared eager to please but was also resolute in some of the
unfortunate positions which he adopted. His greatest fault as a
witness was his repeated tendency to adapt his evidence to changing

circumstances and to avoid answering direct questions, choosing
rather to answer in a torrent of words which often did not directly

answer the question. There were numerous instances in his evidence
where his answers simply lacked credibility and appeared to
be
entirely self-serving. A prime example was when he asked what gave
rise to the stinging excommunication email which he sent
to Ms
Coetzee. He would not give any clear explanation despite being
repeatedly questioned on this and his ultimate response, namely,
that
it was a result of Ms Coetzee’s failure to come to establish a
forum to engage in negotiations about the estate and
the Brakwater
plot, made little sense. Many of the answers which the defendant gave
which were more damaging to his case were in
response to questions
put to him by the Court. The defendant often oscillated between
differing positions on the same issue. For
example on the one hand he
stated that he wanted nothing to do with the agreement between the
sisters relating to the plot proceeds
but this answer stood in sharp
contrast to his almost complete involvement, to the exclusion of his
wife, in the instructions to
the attorney to draft the agreement and
in its execution. It is also very difficult to square his claimed
distaste for the agreement
which he had drawn up i.e. the plot
agreement and the holiday house agreement, with his actions in
drawing the agreement and having
them executed. Although the
defendant affected to be simply giving effect to Chantal’s
wishes in having the agreement drawn
up, and notwithstanding his
claimed distaste for the unequal treatment which the plaintiff was
receiving as a beneficiary in the
estate, all the evidence points in
the opposite direction. There is overwhelming evidence including a
plethora of emails from the
defendant indicating that he was the
driving force behind the disputed plot agreement, all seemingly done
to reimburse Chantal
for loss she allegedly suffered when the estate
was not wound up as lucratively for her as the defendant envisaged.
Chantal’s
role in all this appears to have been very limited,
if not negligible, giving the lie to the defendant’s claims
that he was
merely acting on her instructions.
[71]
All of the defendant’s evidence which was not common cause or
at odds
with that of the plaintiff and Ms Coetzee has to be
critically examined because of his propensity to tailor his answers
to suit
his version of events. There were a considerable number of
occasions in which he was caught out in false testimony, examples
being
that relating to his sale of a motor vehicle used by the
plaintiff as well as false claims and representation made by the
defendant
in emails and communications to the plaintiff or her legal
representatives. The defendant was forced to concede that one such
communication
was replete with embellishments, exaggerations and
untruths. Another deliberate untruth was the defendant’s claim
that Marta
Geiger’s attorney, Gouws, was unhappy that the
proceeds of the plot’s sale were to be shared equally between
the sisters
and had suggested arbitration or a negotiation. This was
flatly denied by Gouws in his affidavit, the contents of which I
accept.
Many other contradictions and untruths appear from the
summary of his evidence above.
[72]
Ultimately, I find, the defendant was not a credible witness on key
issues.
Accordingly, although the main elements of the factual matrix
are common cause, where they are not and where the evidence on behalf

of the plaintiff is credible, aligns with the probabilities, and in
some cases is corroborated by documentation or by the evidence
of Ms
Coetzee, her version is to be preferred to that of the defendant.
Discussion
of the plaintiff’s claim
[73]
The plaintiff’s main claim for the setting aside of the
agreement and
the payment to her of her half share of the proceeds of
the sale of the plot was based in the first instance on duress,
principally
in the form of the threats which she testified the
defendant had made at the Spur meeting to report her to the Namibian
police
and to expose her wrongdoings to her family, notably, Mrs
Geiger in Namibia.  It was only after the conclusion of the
defendant’s
case that the plaintiff applied to amend her
particulars of claim by adding an alternative basis to the main
claim, namely, that
she had been unduly influenced by the defendant
in entering into the agreement. This proposed amendment was opposed
by the defendant
and eventually allowed on the basis that the
defendant would be allowed to plead to the amended particulars of
claim, seek further
discovery and if needs be further cross-examine
the plaintiff and lead evidence in response to the amended
particulars. After a
delay of several months the plaintiff returned
to be cross-examined and the defendant testified yet again. Little if
anything came
of this further cross-examination or evidence, lending
support to the initial argument of the plaintiff’s counsel that
the
supplementary basis for the main claim had in effect already been
covered by the evidence.
[74]
Where a party relies on a contract having been concluded under duress
such
party may elect to rescind or resile from the agreement and be
refunded that which is owed. The agreement, if so concluded, is
voidable since a person who is induced by legally significant fear to
conclude a contract cannot properly said to have consented.
The
requirements to prove duress were summarised by Wessels as follows:
‘
In
order to set aside a contract on the ground of fear, our law requires
the following elements:
1.
Actual violence or reasonable fear;
2.
The fear must be caused by the threat of some considerable
evil to the party or his family;
3.
It must be the threat of an imminent or inevitable evil;
4.
The threat or intimidation must be contra bonos mores;
5.
The moral pressure used must have caused damage.’
[75]
In my view
it is unnecessary to determine whether these requirements, as
expressed by Wessels or glossed by subsequent case law,
have been met
by the plaintiff since the same result in law can be achieved by
considering whether the plaintiff established that,
in concluding the
contract, she was subject to undue influence. In
Patel
v Grobbelaar
[1]
the Appellate Division set out the requirements for a plaintiff who
claims rescission of a contract on the grounds of undue influence
in
the following terms:
‘
Die
onus om hierdie skuldoorsaak te bewys, het klaarblyklik op die
respondent gerus en die geleerde Verhoorregter het, na my oordeel,

tereg bevind dat die respondent die volgende moet bewys:
(i)
dat die appellant ‘n invloed oor hom gekry het;
(ii)
dat hierdie invloed sy teenstand vermoë verswak en sy wil
ploeibaar gemaak het; en
(iii)
dat die appellant hierdie invloed op gewetenlose wyse gebruik het om
die respondent te ooreed om toe
te stem tot ‘n transaksie –
(a) wat tot sy nadeel
strek; en
(b) wat by met normale
wilsvryheid nie so aangegaan het nie’
.
[76]
The undue
influence must be exerted in an unconscionable way. In
Gerolomou
Constructions v Van Wyk
[2]
the Court considered that what acting ‘
unconscionably’
meant in this context was acting with a ‘
substantial
degree of unscrupulousness, an intention to oppress, or a departure
from the values to which right-thinking people subscribe
in the
relevant context’
.
[77]
A party
seeking relief cannot succeed unless able to prove that the contract
must have been induced by the undue influence. If the
plaintiff was
not so induced the influence is of no importance. See
Katzenellenbogen
v Katzenellenbogen and Joseph
[3]
.
[78]
Applying these principles to the present matter it is common cause
that the
defendant was the plaintiff’s brother-in-law and the
executor of her late father’s estate. In addition he had
considerable
business experience and acumen and a financial
background as opposed to against the plaintiff’s very limited
formal education
and her financial and legal naiveté. The
defendant himself conceded that the plaintiff was both legally and
financially
unsophisticated and vulnerable at the time. The plaintiff
appeared, initially at least, to have trusted the defendant. She
testified
that she did virtually whatever the defendant asked of her
including signing documents without reading or properly considering
them or taking legal advice. Having observed the defendant at some
length during his evidence and in argument it is clear that he
is
able to present himself as authoritative in matters financial and
legal, he is articulate and he would be entirely plausible
to someone
in the position of the plaintiff.
[79]
It is clear, furthermore, that the influence which the defendant
enjoyed over
the plaintiff weakened her resistance and made her will
pliable. It is noteworthy that at the time the plaintiff was a
somewhat
isolated figure with few resources at her disposal. Her
father with whom she had lived and worked over many years had
recently
died, her relationship with Daleen had ended and she was
unemployed and in financial straits. At the time the agreement was
concluded
the plaintiff was dependent financially on the defendant
and his wife and living under their roof.
[80]
The further requirement is that the defendant must have used the
influence
which he had unscrupulously or unconscionably to prevail
upon the plaintiff to conclude the agreement. In my view, even if one
has regard only to the common cause facts, the defendant bulldozed
the plaintiff into concluding the agreement. Although the defendant

clung to his evidence that the formal agreement was based on an
agreement between the plaintiff and Chantal, not only was this
not
the plaintiff’s evidence but the probabilities strongly suggest
that this was not the case. In the first place according
to his own
evidence the defendant had no direct knowledge of any such agreement.
Secondly, the defendant’s evidence was completely

contradictory: on the one hand he stated that he was at pains to
distance himself from any discussions or negotiations regarding
the
plot’s proceeds but on the other hand it was clear that he was
the driving force in having the ‘
agreement’
reduced to writing by an attorney and signed by the plaintiff.
Madelyn Kruger was the defendant’s attorney and he gave her

instructions. In all these dealings Chantal appeared to play no role
whatsoever, even being excluded from the meeting when the
agreement
was signed.
[81]
No explanation was ever given by the defendant why the agreement was
not framed
as an agreement between the plaintiff and Chantal. There
were many indications in the surrounding documentation, principally
emails,
that there was no question of any underlying agreement in the
true sense. Tellingly, in his last email to the attorney requesting

an amendment to the draft agreement the defendant spoke of Chantal’s
‘
decision’
to allocate 20% of the plot sale
proceeds to the plaintiff. Needless to say this is hardly the
language of an agreement.
[82]
A further relevant factor in this regard was the clear evidence that
Chantal
initially expected that the plot would be bequeathed to her
alone or, failing that, that she would obtain the full proceeds from

the sale of the plot. Similarly, there was evidence that she was very
unhappy to learn that the proceeds would be divided equally
between
her and the plaintiff and that this had caused a schism between her
and the plaintiff. Yet a further important factor pointing
away from
any agreement between the sisters was the complete lack of any
explanation as to why the plaintiff would forfeit 60%
of her share of
the proceeds to Chantal when she was, in relation to the latter,
already a minor beneficiary in her father’s
estate and
aggrieved by this.
[83]
Turning to the circumstances in which the agreement was concluded it
is clear
that the plaintiff was in effect ambushed by the Spur
meeting. She was given no prior indication by the defendant of what
would
be discussed at the meeting or even that he would be present.
Instead she was confronted with an equalisation agreement and an
affidavit by Daleen relating to her theft of assets from the estate.
Although the defendant denied making any threats, the plaintiff’s

evidence that he put it to her that she must either accept 20% of the
proceeds of the sale or face being reported for theft to
the Namibian
police and having her theft disclosed to her family in Namibia is
entirely credible and in keeping with the probabilities.
Nothing else
explained why the plaintiff would agree to forfeit such a large part
of her entitlement, well in excess of R1mil,
to Chantal.
Significantly, Tammy Coetzee testified that when, many months later,
she tried to ascertain why the plaintiff had concluded
the agreement
she advanced the self-same reasons as the plaintiff put before Court,
namely, that she was in effect overwhelmed
by the defendant and
fearful that he would carry out his threats. As mentioned earlier the
defendant admitted in his plea that
he ‘
may have’
threatened to take ‘
certain steps’
against the
plaintiff to protect his property or in the interests of Hartmut’s’
estate.
[84]
There is considerable evidence that the defendant had a propensity
not only
to make threats against parties who were not inclined to
accept his proposals and dispositions in relation to the estate and
to
the property, but that his modus operandi was to present proposals
and his plans of action to the parties at the last moment. Thus,
for
example, the plaintiff was drawn into the Spur meeting without prior
notification of what would be discussed, and within minutes
of
‘
agreeing’
to the defendant’s proposal,
found herself being driven to an attorney’s office to sign the
agreement and a general
power of attorney. On the defendant’s
version at no stage did he offer her any opportunity to consider the
agreement or documentation
in her own time or to seek advice, let
alone independent legal advice. It is also noteworthy that the
defendant made the threats
of reporting her to the police and
exposing her misdeeds to her Namibian family despite the fact that
the plaintiff had admitted
her wrongdoing and was prepared to sign an
agreement compensating all other interested parties for what they may
have lost. On
a conspectus of all the evidence I accept the
plaintiff’s evidence of the threats which the defendant made at
the Spur meeting
if she did not agree to his proposal that she
forfeit a large portion of her share of the proceeds of the plot’s
sale.
[85]
The manner in which the defendant had the plaintiff open a money
market account
over which he had full delegated authority likewise
bears testimony to his modus operandi. He picked up the plaintiff at
her home
without any prior notification of the purpose of the trip to
Milnerton. The very fact that the account was opened at a branch
removed
from where the plaintiff normally banked suggests that the
defendant wanted as little independent scrutiny of this transaction
as possible.
[86]
Taking all these factors into account I can reach no other conclusion
other
than the defendant used his influence over the plaintiff
unscrupulously or unconscionably to prevail upon her to sign the plot
sale agreement, afford him a general power of attorney and, for that
matter, to open a bank account over which he had complete control
and
which he thereupon acted.
[87]
The requirement that the transaction or agreement which was concluded
is prejudicial
is clearly satisfied inasmuch as pursuant to the
agreement the plaintiff forfeited 40% of her entitlement to the
proceeds of the
sale of the Brakwater plot, a sum well in excess of
R1mil, and handed to the defendant complete control over even the
limited monies
due to her under the agreement.
[88]
The final requirement for the successful invocation of undue
influence is that
in the exercising of her normal free will the
plaintiff would not have entered into the transaction. Although the
plaintiff was
financially naïve she was certainly astute to how
much she was due from the proceeds of the sale of the plot and was
intent
upon obtaining her share. Given the clear evidence that the
plaintiff was already unhappy with the terms of Hartmut’s will

there is no conceivable reason why she would be prepared to forfeit a
large share of her portion of the sale proceeds to Chantal,
the major
beneficiary to Hartmut’s estate. In the circumstances the only
conclusion I can reach is that had the plaintiff
exercised her free
will and had not been unduly influenced by the defendant as described
above, she would not have concluded the
agreement.
[89]
When the evidence is looked at holistically it is clear that the
defendant
was fixated on winding up the deceased’s estate in
such a manner as to obtain the maximum possible benefit for his wife,
Chantal, the major beneficiary to Hartmut’s will (and thus
indirectly himself). In doing so he had his own fixed views of
how
best to wind up the estate. When his views were not accepted without
question or when they were challenged, such as when the
minor
heiresses expressed reservations about selling the BOCO business on
an instalment sale basis, he reacted very badly. So too
when Tammy
Coetzee questioned the manner in which the defendant drew the
liquidation and distribution account, how he apportioned
expenses to
the heiresses and the withdrawals he made from the estate account
this elicited an angry and hostile reaction from
him.
[90]
The defendant did discover material irregularities in the manner in
which the
plaintiff misappropriated, sold off or concealed valuable
assets in the estate but even after recovering these assets or making

the appropriate financial adjustments so that the other heiresses did
not suffer financially, the defendant appears to have become
fixated
about obtaining further redress on behalf of Chantal. In so doing he
impermissibly drew the plot sale into the winding
up of the deceased
estate by using the plaintiff’s entitlement to a half share
thereof as a fund which, between himself and
Chantal, could be used
to redistribute the plaintiff’s share to Chantal in some form
of misguided and misconceived redressing
of damage. In so doing the
defendant used all his business skills and guile to draw up
agreements and documentation giving a legal
veneer to what he was
doing and bulldozing the plaintiff into parting with more than R1mil
of her share of the proceeds. Before
he could do so he swept aside
any dissenting or critical voices such as Tammy Coetzee, even
possibly persuading himself that what
he was doing was a proper
exercise of his duty as an executor. His plans were carefully thought
out and executed and given legal
cover through his use of his
attorney’s services.
[91]
It follows then that the plaintiff’s main claim must succeed on
the alternative
basis of undue influence with the result that it is
unnecessary to consider whether the agreement and power of attorney
can be
set aside on the basis of duress. The agreement concluded on 7
September 2011 falls to be set aside and for good measure, the power

of attorney.
[92]
However, what must still be determined is the sum of money payable by
the defendant
to the plaintiff pursuant to the setting aside of the
agreement. The amount claimed is the sum of R1 843 360.19 which
represents
50% of the nett proceeds of the sale after the deductions
of various expenses and commission. This appears from the statement
of
account issued by Mrs Geiger’s Windhoek attorneys. However,
that self-same account and banking records reveal that prior to
the
final payments to the plaintiff and Chantal an amount of R800 000.00
(or N$) had already been paid to Chantal by the purchaser.
The result
was that when the final payments were made to the plaintiff and
Chantal on 29 November 2011 each was credited with a
sum of R1 443
360.19 and this was the sum of money deposited in the money market
account the defendant had her open at FNB Milnerton.
[93]
The defendant’s evidence was that his wife had arranged the
advance payments
to herself and received these directly. There are
indications that in so doing Chantal gave out to Mrs Geiger’s
attorneys
that this sum was to be split between her and the plaintiff
which of course would accord with Mrs Geiger’s overall
instruction
that the proceeds of the sale be split equally between
the two sisters. This was not done, however, and the plaintiff
received
no part of the advance payment at any stage. The defendant’s
evidence was, furthermore, that these sums were paid directly
into
Chantal’s bank account and this was confirmed by banking
records. In the circumstances, although it may well be that
the
defendant, as ever, lay behind these machinations this remains
unproved and the sum of R800 000.00 must be treated as having
gone
directly to the late Chantal Booysen.
[94]
At an early stage in argument the plaintiff’s counsel was asked
to justify
why the defendant should be ordered to repay the plaintiff
her half share of the R800 000.00 and should Chantal Booysen or the
defendant in his capacity as executor of his late wife’s estate
not have been sued for payment of this sum. Various arguments
were
raised including the fact that for several years, and despite being
nominated in his late wife’s will as executor, the
defendant
had not secured a formal appointment as such. This may well have been
the case but it did not preclude the plaintiff
from pursuing other
remedies in regard to this default on the part of the defendant.
[95]
In the circumstances it appears to me that the maximum claim which
the plaintiff
has against the defendant is the sum of R1 443 360.19,
being the amount being paid into her FNB money market account opened
at
the Milnerton branch and over which the defendant had full
control. As has been noted earlier the defendant withdrew R1 432
500.00
thereof within two days. From this amount, it appears, must be
deducted the so-called advances and payments which he made to the

plaintiff between 10 October 2010 and 27 July 2012 and which he
recorded in a schedule which features in one of the trial bundles

before Court. These amounts total R340 361.23 and were, save for one
item, admitted by the plaintiff as having been received by
her.
[96]
There were some disputes at some stage as to whether these amounts
were advanced
by the defendant based on the fact that the source was
indicated in the schedule as being from CP Booysen. The defendant
however
explained that this was an incorrect notation and his
evidence that he made these advances to the plaintiff out of the R740
000.00
which he regarded himself as holding on her behalf cannot be
seriously disputed. In the result it appears to me that any claim for

monies owing by the defendant to the plaintiff must be reduced by
these advances irrespective furthermore of the fact that a relatively

small portion of these advances were made in the month preceding the
conclusion of the agreement. One item which was disputed was
an
amount of R550.00 described as ‘M Kruger fee for land dispute’.
The defendant was unable to justify this as being
an advance to or on
behalf of the plaintiff and it must be deducted from the advances
bringing the total down to R339 811.23 with
the result that the
capital sum payable by the defendant is R1 092 688.77 (R1 432 500.00
less R340 361.23 plus R550.00).
[97]
It should go without saying that it is irrelevant what the defendant
did with
these monies. Whether he paid them to Chantal Booysen or
used the funds himself is besides the point. He had control over the
monies
which were due to and payable to the plaintiff and he
wrongfully and unlawfully disbursed or failed to repay them.
[98]
This raises, tangentially, the pleas of non-joinder and misjoinder
raised by
the defendant. These defences appear to have been abandoned
by the time that the defendant filed his amended plea on 5 August
2020.
In his special plea of misjoinder the defendant alleged that he
should have been joined in his capacity as executor given that the

agreement between him and the plaintiff was concluded by him in the
latter capacity. This disregards the fact that it has at all
times
been common cause that the agreement was concluded between the
parties in their personal capacities notwithstanding the description

of the defendant’s capacity in the agreement as executor in
Hartmut’s estate.
[99]
In his second special plea the defendant alleged that there had been
non-joinder
inasmuch as he was not joined in his capacity as executor
of his late wife’s estate. This special plea only has merit to
the extent that any monies should have been claimed from his late
wife’s estate. As is set out above, in the absence of the

defendant having being cited in his capacity as executor of his late
wife’s estate, no relief can be granted against him
in that
capacity and none has. In regard to the balance of the monies, as
mentioned the fact that the defendant may have transferred
the bulk
of the money deposited into the plaintiff’s money market
account to his wife is irrelevant.
[100]
It follows also that the defendant is liable for the interest which
is claimed on the capital sum.
Interest was first claimed from 29
November 2011 being the date on which the withdrawals were made by
the defendant.
Costs
[101]
The plaintiff sought costs on an attorney and client scale.
[102]
A Court may
award attorney and client costs against an unsuccessful party where
his conduct has been unworthy, reprehensible or
blameworthy or where
he has been actuated by malice or has been guilty of grave misconduct
either in the transaction under enquiry
or in the conduct of the
case
[4]
. In the present matter
the evidence revealed that the defendant misused his office as
executor of his late father-in-law’s
estate and, for the
benefit of his wife and himself, blurred the line between property
falling into that estate and that which
did not. He used his familial
relationship with the plaintiff, his skill, experience and financial
expertise and various threats
to manipulate the plaintiff into
concluding an agreement which was extremely prejudicial to her but
favourable to defendant’s
wife and himself. That agreement has
now been set aside but even on its own terms he undertook to pay to
the plaintiff the sum
of R740 000.00 albeit less advances. On his own
version some R400 000.00 of the R740 000.00 has been owing to the
plaintiff since
27 July 2012. Notwithstanding this fact and prolonged
litigation which commenced as long ago as July 2013, the defendant
has yet
to pay one cent of this amount to the plaintiff. Nor has he
at any stage tendered to pay interest on the sum. Instead he has
withheld
this sum in attempt to force a settlement from the plaintiff
of unrelated claims by his late wife’s estate, claims which
were never formally instituted. The defendant is an experienced
businessman with accounting experience and skills. He used these

skills to deprive the plaintiff of monies owing to her and which she
appeared to be in sore need of over an extended period of
time, now
approaching nine years. To the last the defendant appeared to take
limited responsibility for his conduct focussing instead
on shifting
blame to any other person involved and, ultimately, on poor legal
advice. As I have found, the defendant was not a
credible witness but
an evasive one who changed his evidence to suit the circumstances in
which he found himself.
[103]
In my view the defendant’s conduct can properly be described as
unworthy, reprehensible or blameworthy
to the extent where it merits
an attorney and client costs order being made against him. I can see
no reason why the plaintiff
should find herself out of pocket for her
legal expenses in circumstances where she has already had to fight a
long and arduous
legal battle to recover but part of what was due to
her. The tender made by the plaintiff at an early stage in the
proceedings
does not assist him as far as costs are concerned. It was
initially an unconditional tender to pay the plaintiff the sum of
R399
638.77 but the defendant never gave effect to it. Not long after
making that tender it was amended to constitute a conditional tender

i.e. in full and final settlement of all of the plaintiff’s
claims. The plaintiff has enjoyed success far beyond the amount
of
the tender and it therefore falls to be disregarded as far as the
making of a costs order is concerned.
[104]
In the result and for these reasons the following order is made:
1.
The agreement concluded between the plaintiff and the defendant on 7
September 2011
is set aside as well as the power of attorney executed
by the plaintiff in the defendant’s favour on that date;
2.
The defendant is ordered to make payment to the plaintiff in the
amount of R1 092 688.77
with interest at the prescribed rate from 29
November 2011 to date of payment;
3.
The plaintiff is awarded costs on the attorney and client scale.
______________________
BOZALEK
J
For
the Plaintiff

Adv M McChesney
As
Instructed by

VGV Attorneys
For
the Defendant

Adv A Newton
As
Instructed by

Brink De Beer Potgieter
and,
later, the defendant in person
[1]
1974
(1) SA 532 (A).
[2]
2011
(4) SA 500
(GNP).
[3]
1947
(2) SA 528 (W) 541.
[4]
The Law
of Costs, AC Cilliers, Butterworths
paragraph
4.50.