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[2011] ZAGPJHC 27
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Booysen and Others v Booysen and Others (29558/10) [2011] ZAGPJHC 27; 2012 (2) SA 38 (GSJ) (25 March 2011)
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SOUTH GAUTENG HIGH COURT, JOHANNESBURG
REPORTABLE
CASE NO
:
29558/10
DATE:
25/03/2011
In the matter between:
NEVILLE
BOOYSEN
..................................................................
First Applicant
AUBREY
BOOYSEN
..............................................................
Second
Applicant
MARIA
MARGARETTE
TYLER
.................................................
Third
Applicant
and
JOSEPH
GERT BOOYSEN
....................................................
First
Respondent
LOUISA
ANNE BOOYSEN
................................................
Second
Respondent
MALHERBE
RIGG & RANWELL INC
..................................
Third
Respondent
STANDARD
EXECUTORS AND TRUSTEES
…............
Fourth
Respondent
MASTER
OF THE HIGH COURT, PRETORIA
…................
Fifth
Respondent
______________________________________________________________
J U D G M E N T
______________________________________________________________
MOSHIDI, J
:
INTRODUCTION
[1] The applicants seek an order
declaring the sale of certain immovable property, Erf 649 Gladiolus
Street, Reiger Park, Extension
1, Boksburg (“
the
immovable property
”)
by Joseph Booysen, to the first and the second respondents, to be
invalid. The applicants also seek to declare as invalid
the Sale
Agreement and the Addendum thereto in respect of the immovable
property. In respect of the third respondent, the applicants
seek an
order interdicting and restraining the third respondent from
registering the transfer of the ownership of the immovable
property
to the first and the second respondents.
OPPOSITION
[2] The first and the second respondent are opposing the
application. They have also brought a counter-application which may
become relevant later herein, if necessary. The third, fourth and
the fifth respondents are not opposing the application.
BACKGROUND
[3] Some background is indispensible. This is by all accounts a
family feud centering around immovable property. Joseph Booysen
and
Dora Booysen were married to each other in community of property.
They were the parents of the first applicant, the second
applicant
and the first respondent. The second respondent is married to the
first respondent in community of property. Dora Booysen
died on 16
April 1998, and was survived by her husband, Joseph Booysen, who also
died later, as indicated later herein. Their
children are the first
applicant, the second applicant and the first respondent.
SOME COMMON CAUSE FACTS
[4] Prior to her demise, the
mother, Dora Booysen, and her husband, Joseph Booysen, executed a
joint will on 1 December 1995 at
Boksburg. Clauses 1 and 4 of the
joint will read, respectively, as follows:
“
1. Mits
die langslewende van ons die eerssterwende van ons vir ‘n
tydperk van tien dae oorleef benoem ons die langslewende
as die
enigste erfgenaam of erfgename van die restant van die boedel van die
eerssterwende van ons.
”
and paragraph 4 thereof as follows:
“
4. As
Eksekuteurs van ons boedels benoem ons die een van Standard Trust
Beperk en die Standard Bank van Suid-Afrika Beperk wat eerste
die
benoeming formeel aanvaar en ons gelas dat ons Eksekuteurs nie
verplig sal wees om in daardie hoedanigheid sekuriteit te verskaf
nie. Bykomend tot hulle vergoeding vir hulle funksies in daardie
hoedanigheid kan ons Eksekuteurs of enige instansie waarin hulle
‘n
belang, geldelik of andersins, het enige ander gebruiklike heffings,
gelde en/of kommissies ten opsigte van enige dienste
en/of werk wat
aan ons boedels voorsien word, behou.
Waar die Eksekuteurs dit na
hulle uitsluitlike goeddunke toepaslik ag is hulle, gedurende die
bereddering van die boedels in ooreenstemming
met hulle normale
bevoedghede, ook daartoe gemagtig om die wyse en voorwaardes van die
verkoop van enige bate te betaal, opsies
uit te oefen en toe te
staan, regte tot beleggings op te neem, huurkontrakte aan te gaan,
prospekteerregte toe te staan, verbandsbeswaarde
eiendom in te koop,
besighede voort te sit en die boedels te bind ten opsigte van enige
laste wat noodwendig aangegaan moet word
ten einde die
beredderingsproses te vergemaklik
.”
Upon her death in April 1998, the
estate of Dora Booysens was duly reported at the offices of the fifth
respondent, the Master of
the Court. In terms of clause 4 of the
joint will, one Elizabeth Margaret Breedt (“
E
M Breedt
”)
of the fourth
respondent, was duly appointed as the executrix of the estate of the
late Dora Booysen. For some strange reason,
this appointment by the
Master was only made on 1 July 2008, some ten years after the death
of Dora Booysen. Attached to the founding
papers is the First and
Final Liquidation and Distribution Account of estate late Dora
Booysen, dated 5 August 2009. There is
also a letter from the
executrix, E M Breedt, dated 21 July 2010, which reads as follows:
“
I
… hereby confirm that the abovementioned estate has not been
finalised due to a shortfall in the estate. The Liquidation
and
Distribution Account can only be advertised and the fixed property
transferred once the shortfall has been received.
”
All of the above are common cause.
[5] It is also common cause that
on or about 8 October 2007, Joseph Booysen (the surviving spouse)
concluded a written deed of
sale in terms of which he sold the
immovable property in the joint estate to his son, the first
respondent, and his wife, the second
respondent. The Sale Agreement
also has an Addendum which was signed by the first and the second
respondents, and the seller,
Joseph Booysen on 18 January 2008.
Joseph Booysen, regrettably, also passed away on 8 May 2008.
ISSUE FOR DETERMINATION
[6] The sole issues for
determination in this matter is firstly, whether the deceased Joseph
Booysen could legally sell the immovable
property to the first and
the second respondents. Secondly, whether the fourth respondent, as
executor in the estate of the late
Dora Booysen, should have
consented to the sale, and finally whether the sale of the immovable
property is governed by the provisions
of the Alienation of Land Act
68 of 1981 (in particular section 2(1) thereof).
THE RESPECTIVE CONTENTIONS OF THE PARTIES
[7] The applicants contend that
the sale was invalid on the basis that their father, the deceased
Joseph Booysen, was not the sole
lawful owner of the immovable
property, but the joint owner. Furthermore, that at the time of the
sale, the estate of their mother,
the late Dora Booysen, had not been
finalised. In addition, the applicants submit that the Sale
Agreement, as well as the Addendum
thereto, violate the provisions of
the
Alienation of Land Act in
several respects. In this regard, the
contention is that the Sale Agreement refers to the late Joseph
Booysen as “
the
seller
”, as
opposed to being acting in his capacity as a future beneficiary under
the joint will with the late Dora Booysen; further
that the Addendum
refers to “
the
seller
” as a
widow and owner of the immovable property; that the purchase price
as set out in clause 1 of the Sale Agreement, was
handwritten and not
initialled by the seller to indicate assent to the purchase price;
that the full benefit of the purchase price
was solely for the
enjoyment of the seller, without any accrual to the estate of the
late Dora Booysen; and finally, that the
Addendum to the Sale
Agreement refers to an annexure attached in the form of an
acknowledgement of debt, the pages whereof were
not all signed or
initialled or thumb-printed by the seller to indicate his
acquiescence with the alteration of the provisions
of the agreement.
[8] On the other hand, the first
and the second respondents have raised various defences. These
include that the applicants have
no
locus
standi
to bring the
application; that the first respondent should not have been cited but
instead Ms E M Breedt (referred to above) as
executrix on the letters
of executorship; that the confirmatory affidavits of the second and
the third applicants are defective;
and that the seller, their
father, was a common law owner of the immovable property and had
intended that the first respondent
purchase same.
[9] All of the issues raised by
the first and the second respondents, except the contention that
their father could lawfully sell
the immovable property, are capable
of disposal with relative ease. The applicants have in the replying
affidavit, in my view,
explained satisfactorily the discrepancy in
the dates appearing on the confirmatory affidavits. Nothing material
turns on this
aspect. Secondly, the applicants clearly have the
necessary
locus standi
to launch this application as they have a real interest in the matter
as potential heirs in their father’s, the seller’s
estate. In terms of the joint will of the late Dora Booysen and the
late Joseph Booysen, the fourth respondent was appointed as
executor
of their estate. Ms E M Breedt was, in turn, duly nominated by the
fourth respondent, even though the fourth respondent
remains the
executor. In the final analysis, the central issue for determination
remains the question whether the Sale Agreement
was validly entered
into. All these points raised by the first and the second
respondents are clearly red-herrings and without
any basis.
SOME APPLICABLE LEGAL PRINCIPLES
[10] I consider some applicable
legal principles. That the seller was possessed of an undivided
half-share of the joint estate
with his late wife, is undisputed.
However, the issue whether he became the sole owner of the joint
estate upon her death, is
questionable. In
Wille’s
Principles of South African Law
9
th
ed, at p 673, under the heading “
Title
of Beneficiaries
”,
the following is said:
“
However,
in the light of the modern system of administration of estates that
replaced the common law system of universal succession,
the right of
the beneficiaries to inherit is no longer absolute nor an assured
one: If the deceased estate, after confirmation
of the liquidation
and distribution account, is found to be insolvent, none of the
beneficiaries will obtain any property or assets
at all. In the case
of a legacy the legatee will only obtain the property bequeathed to
him if, first, the property belonged to
the testator, for the will of
one person cannot confer a real right in favour of another person
over property belonging to a third
person; and if, secondly, the
assets of the deceased not left as legacies are sufficient to pay his
debts. In any event, an heir
cannot vindicate from a third person
property which the heir alleges forms part of the deceased estate;
only the executor has
that power. It follows from the above
considerations that an heir does not upon the death of the testator
acquire the ownership
of the assets of the deceased, but merely has a
vested claim against the executor for payment, delivery, or transfer
of the property
comprising the inheritance; and this claim is
enforceable only when the liquidation and distribution account has
been confirmed.
The heir, in fact, becomes owner of movable property
only on delivery of it, or of immovable property upon registration.
The
same rules apply to a legatee. The modern position is therefore
that a beneficiary has merely a personal right, jus in personam
ad
rem acquirendam, against the executor and does not acquire ownership
by virtue of a will. The heir obtains ownership or a lesser
real
right, such as a usufruct, only upon delivery or transfer in
pursuance of testamentary disposition or intestate succession;
consequently, succession is merely a causa habilis-, or appropriate
reason, for transfer of ownership.
”
(footnotes omitted)
[11] The above is a fairly
general and accurate exposition of the law. In Corbett,
The
Law of Succession in South Africa
,
2
nd
ed, at p 14:
“
The
heir no longer succeeds automatically to the assets and liabilities
of the estate. Though the inheritance vests in the heir,
he or she
does not acquire dominium in individual assets nor become personally
liable for the debts of the deceased. Instead,
the heir acquires a
right against executor to his or her share in the residue after the
liquidation and distribution account has
been settled.
”
At p 15:
“
And
where a man or woman who was married to his or her spouse in
community of property dies, the heirs of the pre-deceased spouse
do
not acquire co-ownership in individual assets of the joint estate,
but merely the right to claim from the executor half of the
net
balance of the joint estate. Nor is the survivor, despite having
been during the lifetime of the pre-deceased spouse co-owner
of half
of the joint estate, vested with dominium of half of the assets.
Like the heirs of the pre-deceased’s spouse, the
survivor is
restricted to a right against the executor to half of the net
balance.
”
In the footnote, reference is
made to
Greenberg v
Estate Greenberg
1955
(3) SA 361
(A). In regard to the legal status of both the deceased
estate and the executor, the deceased estate is not a separate
persona,
but the executor is such person for the purposes of the
estate and in whom the assets and the liabilities temporarily reside
in
a representative capacity. The executor only, has
locus
standi
to sue or to be
sued. See
Law and
Estate Planning
by
Ronald King, 2010 ed, as well as Meyerowitz on
Administration
of Estates
, 2007 ed.
[12] From the above, it is more
than plain that the late Joseph Booysen in the present matter, did
not gain ownership of the whole
joint estate upon the death of his
wife, the late Dora Booysen. He therefore had no legal capacity to
enter into the disputed
Sale Agreement with the first and the second
respondents regarding the immovable property. It was the prerogative
of the executor,
the fourth respondent, to do so. The uncontroverted
evidence is that the estate of the late Dora Booysen is not
finalised, and
the First and Final Liquidation and Distribution
A
ccount
has not been approved, for reasons advanced by the executrix. The
sale was invalid
ab
initio
and calls to be
set aside.
[13] However, if I am incorrect
in my determination set out above, there is yet another reason why
the Sale Agreement can be impugned.
Section 2(1)
of the
Alienation
of Land Act 68 of 1981
, provides:
“
(1)
No alienation of land after the commencement of the section shall,
subject to the provisions of
section 28
, be of any force or effect
unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting
on their written authority.
”
As found above, the late Joseph
Booysen had no authority to conclude the Sale Agreement. He could
also not have done so as agent
for the executor. In
Tabethe
and Others v Mtetwa NO and Others
1978 (1) SA 80
(D), the provisions of
section 1
of Act 71 of 1969
(the precursor to section 2(1) of the current
Alienation of Land Act)
were
debated by the Court. It was held that in order to avoid
invalidity, a deed of sale involving deceased estate property must be
signed by the duly appointed executor or an agent acting on behalf of
the executor under the terms of a written authority. Further,
that
in order to comply with the provisions of
section 2(1)
of the
Alienation of Land Act, the
essential terms of the sale, including
the identity of the parties must appear
ex
facie
the written
document embodying the sale. If evidence
dehors
the sale agreement is
required to establish the identity of the seller, the agreement is
invalid, as two executrixes were appointed,
and only one concluded a
sale agreement, the sale was held to be without force and effect.
The rationale being that both executors
are vested with the
administration of the deceased estate, and both must exercise their
functions and duties jointly. In the instant
matter, it was argued on
behalf of the respondents that in the case of
Tabethe
and Others
, under
discussion, the Court held that a legal right to sell the immovable
property could arise based on the fact that the seller
was the sole
and universal beneficiary. The argument has no merit as it
misconstrues the basis of the decision in that case.
[14] In
Mills
NO v Hoosen
2010 (2)
SA 316
(W), it was held that the deceased estate, as mentioned
earlier in this judgment, has no legal persona and consists of an
aggregate
of assets and obligations. The estate vests in the
executor in the sense that dominium of the assets passes to the
executor, and
singly has the power to deal with the totality of the
deceased estate’s rights and obligations. Further that, in
terms of
the
Administration of Estates Act 66 of 1965
, the executor
is required to administer and distribute the estate according to the
law and under the letters of executorship granted
by the Master of
the High Court. Since the executor alone has the power to deal with
the assets of the estate, it follows that
the executor must be a
party to the sale of any immovable property of the estate. In the
present matter, the argument advanced
on behalf of the respondents
that
Mills NO and
Hoosen
is not
applicable since the seller there acted in a representative capacity,
is misplaced. The contrary is in fact true. The
Mills
NO v Hoosen
matter
deals with the legal status of a deceased estate. It was held that
as the representative of the estate of the executor
omitted to
disclose that he entered into the contract of sale on behalf of the
executor and as a consequence, parole evidence was
necessary in order
to establish the true identity of the seller. The sale was held to
be invalid as there was non-compliance with
the
Alienation of Land
Act. The
respondents in the instant matter, in reliance of the
contention that the late Joseph Booysen was entitled to sell the
immovable
property, referred to
Kotze
NO v Oosthuizen
1988
(3) SA 578
(C), and
Van
den Bergh v Coetzee
2001 (4) SA 93
(T). The
Kotze
NO v Oosthuizen
case
dealt with the question whether the provisions of
section 15
of the
Matrimonial Property Act 88 of 1984
was applicable in circumstances
where property in a deceased estate is transferred. On the other
hand, the
Van der Bergh
v Coetzee
case dealt
with the question whether an executor may be held liable for latent
defects in estate property where the deceased had
knowledge of such
defects. Both these cases referred to are irrelevant to the facts of
the present matter, and of little assistance.
CONCLUSION
[15] To sum up. The applicants’
parents, the late Dora Booysen and her husband, the late Joseph
Booysen, were married in
community of property. There is the
immovable property in the joint estate which forms part of the joint
estate. There is a joint
will. After the death of the mother, Dora
Booysen, and in accordance with the joint will, the fourth respondent
was appointed
as executor. The surviving spouse, the father, sold
the immovable property in his own name without the consent of the
executor,
and in circumstances when the deceased estate of his late
wife was no finalised. The deceased estate is not a separate legal
persona.
The executor is such a person for the sole purpose of
administering the estate. The surviving spouse, the late Joseph
Booysen,
had no legal authority or right to sell the immovable
property to the first and the second respondents. The
Alienation of
Land Act 68 of 1981
is applicable to the sale of the immovable
property, and non-compliance therewith renders the sale void
ab
initio
. The contract
of sale cannot be rectified by attaching the signature of the
executor subsequently. The Agreement of Sale, and
the Addendum
thereto, concerning the immovable property falls to be declared
invalid. It follows that the third respondent, Malherbe
Rigg &
Ranwell Inc, ought also to be interdicted from registering the
transfer of the immovable property to the first and the
second
respondents. It also follows that the counter-application of the
first and the second respondents falls to be dismissed.
It has
neither merit nor any basis. The costs of this application should
follow the result. It has not been argued otherwise.
ORDER
[16] The following order is made:
The sale of the immovable
property described as Erf 649 Gladiolus Street, Reiger Park,
Extension 1, Boksburg to the first and
the second respondents, and
the Addendum thereto, are hereby set aside as invalid.
The third respondent is hereby interdicted and restrained from
registering the transfer of the above immovable property to the
first and second respondents.
The counter-application of the first and the second respondents is
hereby dismissed with costs.
The first and the second
respondents are ordered, jointly and severally, the one paying the
other to be absolved, to pay the costs
of the application.
_____________________________
D S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANTS
….....
MS
N ADAM
INSTRUCTED
BY
..........................................
BEN
STEYN ATTORNEYS
COUNSEL FOR THE FIRST AND
THE SECOND RESPONDENTS
...............
ZEHIR
OMAR
INSTRUCTED BY
.........................................
ZEHIR
OMAR ATTORNEYS
DATE OF HEARING
…................................
10
NOVEMBER 2010
DATE OF
JUDGMENT
.................................
25
MARCH 2011