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[2017] ZAGPJHC 86
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Bezuidenhout v Master of the High Court, Johannesburg and Others (21233/2016) [2017] ZAGPJHC 86 (16 March 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER : 21233/2016
Reportable:
No
Of
interest to other judges: No
16/3/2017
In
the matter between
LETITIA
BEZUIDENHOUT
Applicant
and
THE
MASTER OF THE HIGH COURT, JOHANNESBURG
First
Respondent
HENRIK
CHRISTIAAN NOLTE N.O.
Second
Respondent
ESTELLE
MAARTENS
Third
Respondent
THE
REGISTRAR OF DEEDS, PRETORIA
Fourth
Respondent
JUDGMENT
ANDRÉ
GAUTSCHI AJ :
[1]
This is an application to review and set aside a decision by the
first respondent (“the Master”) made on 25 May
2016
upholding an objection by the third respondent (“Mrs Maartens”)
dated 19 January 2015 to the first and final liquidation
and
distribution account (“the account”) in the estate of the
late Johannes Jacobus Smith (“the deceased”),
together
with ancillary relief, which includes declaratory relief.
[2]
Mrs Maartens (her present married name) and the deceased were married
in community of property on 30 January 1988. They
purchased an
immovable property (Erf […] Golf Park, Registration Division
IR, Transvaal, situated at […] Avenue,
Golf Park, Meyerton),
hereinafter referred to “the property”, for R65 000.
The property was registered in
their names as co-owners, each owning
50%, on 18 January 1989. A mortgage bond in the amount of
R58 000 was registered
simultaneously over the property.
[3]
Mrs Maartens instituted divorce proceedings against the deceased in
the then Transvaal Provincial Division in Pretoria during
1996.
The divorce was acrimonious, but a settlement agreement was
eventually entered into on 6 March 1998. Mrs Maartens
and the
deceased were divorced by order of court on 24 April 1998, which
order declared the settlement agreement as “binding”
(“GELAS DIE HOF …2. Dat die skikkingsakte (gemerk “B”)
bindend verklaar word.”).
[4]
The issue in this matter is whether the property was dealt with in
the settlement agreement, in which case it was to be the
sole
property of the deceased, or whether it was not dealt with in the
settlement agreement, in which case Mrs Maartens is still
a 50% owner
thereof.
[5]
The deceased died on 27 November 2013. The applicant met the
deceased in December 1996 and is the sole heir to the deceased’s
estate.
[6]
When the first and final liquidation and distribution account was
drawn up by the executor (the
second
respondent
), the entire property was reflected as an
asset in the estate. Mrs Maartens objected thereto, and the
Master upheld her objection.
It is that decision which is
sought to be reviewed and set aside.
[7]
The settlement agreement is entirely in Afrikaans. It records
inter alia
that the parties have reached an agreement and
desire to reduce the terms of the settlement to writing and that it
be made an order
of court. The relevant parts provide as
follows :
“
3.
Die verdeling van die gemeenskaplike bates sal as gevolg geskied:
3.1 Eiseres behou haar
vaste belegging ten bedrae van R45 000-00 as haar uitsluitlike
eiendom.
3.2 Eiseres behou the BMW
motorvoertuig, maar sal verantwoordelik wees vir die maandelikse
paaiemente in terme die kredietooreenkoms.
3.3 Eiseres sal die
volgende meubels ontvang [Then follows a list of 14 items or
categories of furniture].
4. Die Verweerder betaal
aan Eiseres ‘n bedrag van R30 000-00 in kontant, waarvan
R10 000-00 betaalbaar is by ondertekening
van hierdie skikking
en R20 000-00 betaalbaar voor of op die 31ste Desember 1998.
5. Die Eiseres sal
geregtig wees op 50% van die Verweerder se Pensioenbelang soos op
datum van Egskeiding. Die Verweerder
onderneem om Eiseres se
helfte aan haar uit te betaal by bedanking van die Verweerder uit sy
werkgewer se diens.
6. Die partye plaas op
record dat the Eiseres geregtig is op die helfte van Verweerder se
aandele belegging in die bedrag van R34 000-00
en welke aan haar
betaalbaar sal wees oor vyf (5) jaar, plus rente teen ‘n
markverwante rentekoers.
7. Die Verweerder behou
alle ander bates asook sy gereedskap.
…”
[8]
The applicant contends that on the plain reading of the settlement
agreement, the words in clause 7 (“Die Verweerder behou
alle
ander bates …”) includes the property, with the result
that the property was correctly included in the account.
Mrs
Maartens on the other hand contends that the immovable property is
not included in the settlement agreement, and that she remains
a 50%
owner thereof, and for that reason the whole property should not have
been included in the account, but only 50% thereof.
[9]
On either version it is strange and unfortunate that the property is
not mentioned. If it was intended to be excluded
from the
settlement agreement, one would have expected that fact to be
recorded therein. Should it have been intended to
be included,
one would equally have expected it to have been mentioned
specifically. I therefore regard the fact that the
settlement
agreement does not refer specifically to the property as a neutral
factor in the interpretation thereof.
[10]
Logically one would expect parties, especially in an acrimonious and
drawn out divorce, to wish to make a clean break and to
deal with all
proprietary aspects, and certainly not to have to continue as
co-owners of an asset into the future. The settlement
agreement
records that they had reached an agreement and wished to reduce the
terms of the settlement to writing. Clause
3 refers to a
division of their joint assets (without limitation). The
recordal in clause 7 that the deceased would retain
all other assets
would seem to include the property.
[11]
On the other hand, Mrs Maartens (who unlike the applicant was a party
to the settlement agreement) alleges that the divorce
was so
acrimonious that she and the deceased were unable to reach agreement
on the immovable property and hence had specifically
excluded it from
the settlement agreement.
[12]
I assume in favour of Mrs Maartens that I am entitled to take into
account her version of why the property was not mentioned
in the
settlement agreement, as part of the context or matrix within which
the settlement agreement was concluded. On the
face of it, it
is powerful evidence in her favour, and the applicant cannot and does
not rebut it with direct evidence. But
it does not withstand
scrutiny. In the same breath as alleging that they could not
reach agreement on the immovable property,
Mrs Maartens alleges that
they in fact reached agreement (orally) as to what would happen with
the property, as follows :
“
The deceased and I
agreed that the deceased would occupy the property and would
therefore be liable for expenses relating to the
property such as
municipal rates and taxes. The deceased would be entitled to
occupy the house and the division of our interest
in the property
would only take place if the property is sold or on the death of any
one of us.”
Those
are irreconcilable statements. If they were able to reach
agreement as she alleges, then it was possible to include
it in the
settlement agreement, despite the acrimony of the divorce.
Moreover, the oral agreement contended for by Mrs Maartens
is
implausible in the extreme. It envisaged that the deceased
would be entitled to occupy the property on an open-ended basis,
and
Mrs Maartens would not derive any benefit from her 50% share of the
property for an indeterminate period. No provision
was made as
to when the property would be sold, save on the death of one of them,
and the deceased and Mrs Maartens could have
lived for many decades
after the alleged oral agreement. Having been so careful to
divide up every other asset in their joint
estate, it is extremely
unlikely that they would have dealt with the immovable property on so
vague a basis.
[13]
The
parties’ conduct subsequent to the conclusion of an agreement
may provide proof of their common intention at the time
that they
concluded the agreement, and it is accordingly accepted that such
conduct may be considered as part of the contextual
setting to
ascertain the meaning of a disputed term
[1]
.
[14]
Mrs Maartens’ and the deceased’s conduct thereafter also
does not support her version of the oral agreement or
her
interpretation of clause 7 of the settlement agreement. For
more than 15 years, until the deceased died, the deceased
had the
benefit of the property (albeit that he had to pay rates and taxes
and electricity for the property), without demur from
Mrs Maartens.
The deceased alone made the bond payments, paid for the upkeep and
maintenance of the property, and effected
several improvements to the
property, at his own cost, on the face of it treating the property as
if he was the sole owner.
When he died, according to the oral
agreement on Mrs Maartens’ version, the property should have
been sold, but she made
no attempt, alone or through the executor of
the estate, to take steps to have it sold. A tenant was in the
property for
three months after the deceased died, and Mrs Maartens
laid no claim to a part of the rental paid. When the applicant
thereafter
moved into the property, there was no objection from Mrs
Maartens. It was only when the property was reflected in the
account,
more than a year after the death of the deceased, that she
was galvanized into action.
[15]
The
aforesaid facts drive me to the conclusion that I am entitled to
reject the version of Mrs Maartens, that the immovable property
was
deliberately not mentioned in the settlement agreement, and that she
and the deceased had reached an oral agreement about the
property, as
far-fetched or clearly untenable
[2]
and rejectable purely on the papers.
[16]
I therefore find that the property is included in the words “alle
bates” in clause 7 of the settlement agreement.
[17]
Counsel were agreed that if that were my finding, the review had to
succeed, and the decision of the Master set aside.
[18]
For
completeness, however, I mention that I am satisfied that the
expression used in the divorce order (“GELAS DIE HOF …2.
Dat die skikkingsakte (gemerk “B”) bindend verklaar
word.”) was simply another way of saying that the settlement
agreement be made an order of court. In my view it can have no
other meaning. That being so, the effect of the order
would be
that
dominium
in the property immediately vested in the deceased, and registration
of transfer of Mrs Maartens’ 50% share was not a requisite
for
dominium
to vest in the deceased
[3]
.
Accordingly, the stance of counsel on both sides is in my view
correct, and the application must succeed.
[19]
In the result, I make the following order :
1. The first respondent's
decision of 25 May 2016 to sustain the third respondent's objection
dated 19 January 2015 to the first
and final liquidation and
distribution account in the estate of the late Johannes Jacobus Smith
(estate number 20781/2014), lodged
in terms of section 35(7) of the
Administration of Estates Act, 66 of 1965
, is reviewed and set aside.
2. The entire immovable
property described as Erf […], Golf Park, Registration
Division I R, Transvaal, situated at […]
Avenue, Golf Park,
Meyerton, is declared to be an asset in the estate of the late
Johannes Jacobus Smith.
3. The second respondent
is authorised to distribute the estate of the late Johannes Jacobus
Smith in accordance with the first
and final liquidation and
distribution account dated 4 December 2014.
4. The fourth respondent
is directed to give effect to this order insofar same may be
necessary for the finalisation of the distribution
of the estate of
the late Johannes Jacobus Smith.
5. The third respondent
is ordered to pay the costs of this application.
____________________
ANDRÉ
GAUTSCHI
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing
:
15
February 2017
Date
of judgment
:
16
March 2017
Counsel
for the applicant
:
Mr
R Grundlingh
Attorney
for the applicant
:
Philip
van der Merwe & Partners Inc
(Mr
J Lombard)
Counsel
for the third respondent
:
Mr
P G Leeuwner
Attorney
for the third respondent
:
De
Klerk Vermaak & Partners
(L
W van Wyk)
No
appearance for the other
respondent
s
[1]
Unica
Iron and Steel (Pty) Ltd and Another v Mirchandani
2016 (2) SA 307
(SCA) at para [21]
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-5
[3]
Corporate
Liquidators (Pty) Ltd & Another v Wiggill & Others
2007 (2) SA 520
(T) at para [16]