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[2010] ZAGPPHC 616
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Botes and Others v Swart and Others (11852/2006) [2010] ZAGPPHC 616 (7 May 2010)
/EVDM
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT)
Case Number:
11852/2006
Date: 7 May 2010
In the matter
between:,
HULDA
BOTES
.......................................................................................................................
1
st
PLAINTIFF
ELIZABETH
SCHEEPERS
...................................................................................................
2
nd
PLAINTIFF
PAUL
HEYNS
..........................................................................................................................
3
rd
PLAINTIFF
vs
ALBERT JOHANNES
SWART
.........................................................................................
1
st
DEFENDANT
MAGDALENA
PETRONELLA
ROUX
............................................................................
2
nd
DEFENDANT
JACOBUS EGNATIUS
DE WET
SWART
.......................................................................
3
rd
DEFENDANT
CLARA ISABELA
SWART
................................................................................................
4
th
DEFENDANT
JOACHEMINA
CATHARINA ELIZABETH
BRITTER
...............................................
5
th
DEFENDANT
GERDA
SWART
..................................................................................................................
6
th
DEFENDANT
ANNA CATHARINA
SUSANNA SWART
…..................................................................
7
th
DEFENDANT
THE REGISTRAR OF
DEEDS,
PRETORIA
...................................................................
8
th
DEFENDANT
JUDGMENT
Delivered on: 07 May
2010
POTTERILL J,
[1] In this case no
evidence was led. The pleadings are in Afrikaans and the argument was
respectively in Afrikaans and English.
The parties agreed what the
common cause facts and issues in dispute are and these were
formulated in English; I accordingly found
it convenient to proceed
with the judgment in English.
[2] The first to
third Plaintiffs are requesting a declaratory order with the
following content relevant to the issues currently
to be decided:
“
1.1
eerste tot derde eisers gesamentlik geregtig is op ‘n halwe
onverdeelde aandeel van die resterende gedeelte van die plaas
Klipfontein 23.
2.2 eerste tot
derde eisers afsonderlik elk geregtig is op ‘n derde van ‘n
halwe onverdeelde aandeel van die resterende
gedeelte van die plaas
Klipfontein 238;
2.3 eerste tot
sewende verweerders gesamentlik geregtig is op ‘n halwe
onverdeelde aandeel van die resterende gedeelte van
die plaas
Klipfontein 238;
2.4 Eerste tot
sewende verweerders elk afsonderlik geregtig is op ‘n sewende
van ‘n halwe onverdeelde aandeel van die
resterende gedeelte
van die plaas Klipfontein 238.”
[3]
Prayers 2-6.2 of the summons were by agreement between the parties
separated from the quoted paragraph 1 of the summons supra.
I ordered
such separation in terms of rule 33(4) and postponed those prayers
sine die.
[4]
The defendants pleaded that the court order did not amend the will to
the extent that the plaintiffs and defendants inherit
per
capita
and
not
per stirpes.
They
also filed a counterclaim with alternatives in essence requiring the
Court to declare that the Court Order did not amend the
will.
[5] The parties
agreed that the following matters are common cause:
5.1. The late
Catharina Elizabeth Linnekamp [previously Muller, born Erasmus]
(hereinafter referred to as “the testatrix”)
and Pieter
Emelius Swart (hereinafter referred to as “the executor”)
and Joachemina Catharina Elizabeth Goosen [previously
Swart, born
Muller] (hereinafter referred to as “Goosen”) were the
co-owners of the farm called Klipfontein No. 95
(hereinafter referred
to as “the farm”).
5.2. In terms of the
Deed of Transport No. 11338/1936 dated 1 July 1936, the testatrix
held an undivided % share in the farm.
5.3. In terms of the
Deed of Transport 11339/1936 dated 1 July 1936, the executor and
Goosen jointly and as a result of their marriage
in community of
property, held an undivided % share in the farm.
5.4. On 15 November
1942 the testatrix signed and executed a valid will.
5.5. On 7 May 1947
the testatrix signed and executed a valid codicil to the will.
5.6.
In terms of the will read with the codicil thereto, the testatrix
inter alia:
(a) Bequeathed her %
share in the farm to all her great grandchildren born or to be born
from the marriages of her grandchildren
bom to her daughter Goosen;
and
(b) Nominated Pieter
Emelius Swart as executor of her deceased estate.
5.7.
The bequest of the % share in the farm Klipfontein to the great
grandchildren was
per
capita.
5.8. The testatrix
past away on 24 August 1951.
5.9. Pieter Emelius
Swart accepted the nomination as executor and was validly appointed
as executor in terms of Letters of Administration
No. 5745/1951
issued by the Master of the High Court on 18 December 1951.
5.10. The great
grandchildren of the testatrix are the First, Second and Third
Plaintiffs, the First to Sixth Defendants and the
late Pieter Emelius
Swart (who is not the executor and substituted by the Seventh
Defendant) the ultimate beneficiaries of the
farm in respect of the
will.
5.11. On 21 May 1953
the marriage in community of property between the executor and Goosen
was terminated and the joint estate was
divided by this Honourable
Court.
5.12. On 26
September 1956 the executor applied to this Honourable Court under
petition for the partition of the farm.
5.13.
In terms of the petition the executor applied to this Honourable
Court for an order,
inter
alia:
(a) Authorizing the
executor to transport the % undivided share of the farm to Gerhardus
Jacobus Muller Swart, in trust for his
children born or to be born
out of his marriage and Johan Wilhelm Heyns, in trust for his
children born or to be born out of his
marriage with Catharina
Elizabeth Nicolina Heyns [born Swart];
(b) Consenting to
and authorizing the Deed of Partition, annexure “D.”
(c) Authorizing the
Registrar of Deeds to register the Deed of Transport and Deed of
Partition.
5.14. On 22 November
1956 and as a result of the above petition, this Honourable Court
granted an order.
5.15. On 30 April
1957 this Honourable Court on application varied and changed the
above order.
5.16. At the time
the petition was launched (22 September 1956) the Third Defendant was
already born on 26 October 1955. Also at
the time the averments
contained in paragraph 10(1) of the petition was factually incorrect
in that the Third Defendant had already
been born at the time when
the affidavit was prepared, signed and the petition presented to
court;
[6] The following
matters are in dispute:
6.1.Was
the testamentary bequest of the testatrix to her great grandchildren,
one
per capita
or
per stirpes?
6.2.
If
per capita,
did
the court orders of 22 November 1956 and 30 April 1957 or the
registration of the Deed of Division (Partition), alter the regime
to
one
per stirpes
on
an interpretation thereof?
6.3. If yes, was
this alteration valid or binding as against the Defendants or
otherwise competent for the court to make?
[7]
It is common cause that the testatrix’s will read with the
codicil is a bequest
per
capita,
i.e.
a
3
A
share
in the farm to all her great grandchildren conceived or to be
conceived. The question in paragraph 6.1 need not be decided
by this
court. The usufructuaries in respect of the farm are now deceased and
the litigants are thus to receive their shares of
the farm. It is the
extent of these shares that brought this dispute before the court.
The question is are the shares in accordance
with the will in that
each of the ten great grandchildren share 10% equally or based on the
interpretation of the Court order the
three plaintiffs are to receive
50% and the seven defendants 50% of the farm. The plaintiffs are
submitting that the court order
did amend the shares to 50% for the
plaintiffs and 50% to the defendants. The defendants contend that the
court order did not effect
this change and all the great
grandchildren are to receive a tenth.
[8]
The petition that led to the court orders sets out that Pieter
Emilius Swart in his personal capacity and in his capacity as
executor brought the petition. Mrs Goosen (daughter of the deceased),
Mr Swart (grand-son of the deceased) and Mr and Mrs Heyns
(granddaughter and her husband) filed affidavits in support of the
petition. It is explained that the deceased and Mr Swart are
the
co-owners in undivided shares of the farm. The deceased is the
registered owner of the
¾
of
the undivided share of the farm and he is the registered owner of %
of the undivided share of the farm. He was married to the
daughter of
the deceased, but they divorced. The daughter then married Mr Goosen.
The property between Mrs Goosen and him must
be divided, but before
this can be done there must be a division of the property between him
and the great grandchildren inheriting
the % of the farm. Paragraph 6
sets it out as follows:
“
Voordat
die gesegde een-vierde aandeel tussen U Petisionaris en die gesegde
Goosen verdeel kan word, moet daar verdeling geskied
tussen u
Petisionaris en die erfgename van die Oorledene , sodat u Petisionahs
se geregistreerde een-vierde-aandeel, wat tans onverdeel
is, ‘n
afsonderlike eiendom kan word.”
Paragraph 12 of the
petition then reads:
“
U
Petisonaris is van voomemens om in sy persoonlike hoedanigheid, ‘n
akte van Verdeling met die gesegde GERHARDUS JACOBUS
MULLER SWART (in
sy hoedanigheid as die vader en natuurlike voog van die kinders
gebore ofte word gebore uit sy huwelik, en met
die gesegde JOHAN
WILHELM HEYNS (in sy hoedanigheid as die vader en natuurlike voog van
sy
kinders gebore
ofte worde gebore uit sy huwelik) aan te gaan, ‘n konsep
afskrif van welke Akte van Verdeling hieraangeheg
word gemerk “D.
”
And in paragraph 13
the following is said:
“
Kagtens
die gesegde Akte van Verdeling sal die plaas KLIPFONTEIN Nr 95,
distrik Middelburg soos volg verdeel word:-
(a) Aan u
Petisionaris, in sy persoonlike hoedanigheid, Seker gedeelte 1 van
die plaas KLIPFONTEIN Nr 95 gelee in die distrik Middelburg
groot
547.2414 morge soos sal blyk uit kaart LG. Nr A. 4901/54.
(b) Aan die
gesegde Gerhardus Jacobus Muller Swart, in trust vir sy kinders
gebore of nog te worde gebore uit sy huwelik en aan
JOHAN WILHELM
HEYNS, in trust vir sy kinders gebore of nog te worde gebore uit sy
huwelik en aan JOHAN WILHELM HEYNS, in trust
vir die kinders gebore
of nog te worde gebore uit sy huwelik, seker Resterende gedeelte van
die plaas Klipfontein, Nr. 95, gelee
in diedistrik Middelburg, groot
as sulks 1642.3319 morge, onderhewig aan ‘n serwituut van
Uitspanning groot 1/75ste van 2189
morge 344 vierkante roede. ”
The petitioner then
sets out that the division would be fair and to the advantage of all
the yet unborn and minor great grandchildren.
The reason for this
being that according to the attached appraiser’s valuation the
portion he would receive would be less
in value because his % would
not have the dwelling on it. An appraiser’s valuation is
attached in support of this submission.
Annexure D reads as
follows:
“
a)
Genoemde PIETER EMILIUS SWART ‘n 1/4de aandeel kragtens Akte
van Transport Nr 11339/1936, gedateer die 1ste Julie,1936;
b)
Genoemde GERHARDUS JACOBUS MULLER SWART in trust vir sy kinders
gebore of te worde gebore uit
sy
huwelik, ‘n
3/8ste aandeel kragtens Akte van Transport te worde geregistreer;
c) Genoemde Johan
Wilhelm Heyns in trust vir sy kinders gebore of nog te gebore worde
gebore uit sy huwelik met CATHERINA ELIZABETH
NICOLINA HEYNS (gebore
Swart) ‘n 3/8ste aandeel kragtens Akte van Transport te worde
geregistreer.”
[9] The plaintiffs
thus argue that the reference to the 3/8 shares was directing that
each of the two groups of great grandchildren’s
is to receive a
50% of the farm. The Court order reads:
“
1.
Dat die applikant hierby in sy voomneide hoedanigheid gemagtig word
om die drie-vierde aandeei in die piaas KLIPFONTEIN Nr.95,
distrik
Middelburg te transporteer aan Gerhardus Jacobus Muller Swart, in
trust vir sy kinders gebore uit
sy
huwelik, en aan
Catherina Elizabeth Nicolina Heyns, gebore Swart, in tmst vir die
kinders gebore uit haar huwelik met Johan Wilhelm
Heyns;
2. Dat die Akte
van Verdeling, aanhangsei “D” goedgekeur en bekragtig
word; en
3. Dat die
Registrateur van Aktes, Pretoria, gemagtig word om voomoemde
transport en die verdelingstransport in terme van die gesegde
Verdelings Akte te registreer.”
[10]
The plaintiffs further argue that I must interpret this order in
accordance with the principles as set out in
Firestone
South Africa (Pty )Ltd v Genticuro A.g.
1977(4)
AD 298 at 304 D and specifically:
“
The
basic principles applicable to construing documents also apply to the
construction of a court’s judgment or order: the
court’s
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the
usual, well-known
rules...Thus as in the case of a document, the judgment or order and
the court’s reasons for giving it
must be read as a whole in
order to ascertain its intention. If, on such reading, the meaning of
the judgment or order is clear
and unambiguous, no extrinsic fact or
evidence is admissible to contradict, vary, qualify, or supplement
it. Indeed it
was
common cause that
in such a case not even the court that gave the judgment or order can
be asked to state what its subjective intention
was in giving it."
I
was
also referred to
Administrator,
Cape, and Another v Ntshwaqela And Others
1990
(1) SA 705
on 716 B-C;
“
Similarly,
the order with which a judgment concludes has a special function: it
is the executive part of a judgment which defines
what the Court
requires to be done or not to be done, so that the defendant or
respondent, or in some the world, may know it.”
It is submitted that
the order is unambiguous and. accordingly no extrinsic evidence is
admissible. The order must be interpreted
as amending the will to
bequeath the farm to the great grandchildren per stripes.
[11] The defendants
argue that the order did not amend the will. This is so on analysis
of the documents. Annexure D only reflects
that each of the two
groups of grandchildren are to hold a 3/8 share of the farm. This
document was however flawed in that it incorrectly
reflects the
granddaughter’s husband as acting on behalf of the children
born from his marriage to the granddaughter and
not herself being
cited as the correct party on behalf of the children. The document
then registered as the “Akte van Verdelingtransport,”
despite the content of Annexure D, correctly reflects Catharina
Elizabeth Heyns as a party and not her husband. This document nowhere
records a 3/8 division between the groups of great grandchildren. The
% of the farm is transferred to the both groups of great
grandchildren and no mention of portions is made. The transfer of the
property in terms of the “Akte van Transport”
reads as
follows:
“
NOU
DERHALWE sedeer en transporter hy, die genoemde Komparant, in sy
hoedanigheid voormeld, onder hierdie Akte in voile en vrye
eiendom
aan en ten behoewe van:
1) GERHARDUS
JACOBUS MULLER SWART IN TRUST VIR SY KINDERS GEBORE OF TE WORDE
GEBORE; en
2) CATHARINA
ELIZABETH NICOLINA HEYNS (gebore Swart) getroud buite gemeenskap van
goedere met JOHAN WILHELM HEYNS;
IN TRUST VIR HAAR
KINDERS GEBORE OF TE WORDE GEBORE;
Hulle
Erfgename,Eksekuteurs,Adminstrateurs of Regverkrygendes:
S E K E R
DrieA/ierde (3/4 de) aandeel van die Plaas Klipfontein Nr 95, gelee
in die distrik MIDDELBURG
It is argued that
the Court order and the amendment thereto were obtained By Mr Swart
in his personal capacity to separate his undivided
% portion of the
farm and in his capacity as executor to finalize the estate of the
testatrix. The two grandchildren could take
transfer of the property
in their representative capacities for the children bom and to be
born. This is borne out by the documents
that followed the court
orders.
The defendant in
turn referred me to the Firestone-matter supra on p304 E-F
reiterating that the court’s judgment or order
and the court’s
reasons for giving it must be read as a whole in order to ascertain
its intention. Only if then the meaning
of the judgment or order is
clear and unambiguous no extrinsic fact or evidence is admissible.
[12]
I am required to interpret the amended Court order and to declare
whether the order does in fact change the testator’s
bequeath
to the great grandchildren inheriting the farm from
per
capita
to
per stirpes.
The
nature of the dispute before me requires me to interpret the order
not in isolation; I must read the will and compare it to
the court
order to come to a decision. The court did not give reasons as the
petition was granted
ex
parte.
I
must at least consider the documents that the plaintiffs handed in as
bundle D; the petition and annexures thereto and the 56-57
court
orders. These documents must be interpreted as a whole to come to a
conclusion. I can not find these documents to be extrinsic
evidence.
I must interpret them on their ordinary grammatical meaning. In the
words of Judge Mahomed in
Battiss
And Another
v
Elcentre Group
Holdings Ltd And Others
1993(4)
SA 69 on p72 at F
“
This
approach (with reference to the approach set out in the Firestone
matter supra) is, however, in no way inconsistent with the
proposition
that the proper meaning of the words in
any particular order by a Court must be ascertained by reference to
its context and the
objects sought to be achieved by the terms of the
order.”
The
Petitioner acted in his personal capacity and as executor. According
to the petition the object in his personal capacity is
to divide his
% share of the farm from the
3
A
share
so that in turn the % share can be divided between him and his
ex-wife.
In paragraphs 11 of
the petition he stated that the children of respectively Swart and
Heyns are in terms of the wiil to inherit
a % share of the farm. In
paragraph 13 he is thus asking for a division of the farm between
himself and the two children born from
the testatrix as trustees for
the great grandchildren born or still to be born. No mention of
portions is made.
In prayer (a) of the
petition he as executor is requesting the court to grant him
permission to transport the % share of the farm
to Gerhardus Muller
Swart in trust and Johan Wilhelm Heyns in trust for their children
born or still to be born. This clearly is
the object. There is no
request or implied request to amend the terms of the will.
Prayer
(b) of the order is also granted. In terms hereof the “Akte van
Verdeling, aanhangsel D goed(ge)keur en bekragtig."
Annexure D
then proposes to divide the farm in accordance with the objects set
out in the petition. In fact it does this. It states
that the
division will be such that Swart will get a 1/4 share, the other
Swart will get 3/8 of the farm in trust for the children
born or
still to be born and Heyns will get a 3/8 share of the farm in trust;
this just boils down to half each of the % of the
farm. There is no
allocation of portions to the great grandchildren and the order does
not purport to do so. The court order is
in accordance with the will.
The court order did not amend the bequest to the great grandchildren
from per capita to per
stirpes.
In
context the order fulfilled the purpose of the petition.
[13]
A Court does not have the jurisdiction to grant an order that has the
effect of varying a will. In
Bydawell
v
Chapman, NO And
Others
1953
(3) SA 514
(A) the court found that the court does not have the
jurisdiction to lawfully vary the terms of a will by incorporating an
agreement
in an order of court. If such an order is granted it is a
nullity. In
Ex
Parte Kruger
1976(1)
SA 609 (O) the court on p611 found the following:
“
N
a
oorweging is ek
van mening dat indien die ondertiawige aansoek toegestaan sal word ‘n
wysiging aangebring sal word in die
betrokke testament wat ‘n
erfopvolging tot gevolg sal hê strydig met wat deur testateurs
bepaal is. Die hof het geen
magtiging of regsbevoegdheid om ‘n
bevel te verleen wat ‘n wysiging van die testament meebring
nie. ”
The
plaintiffs argued there may have been special circumstances that
swayed the court to grant such an order and this court can
not
speculate what that may be. Such special circumstances must be set
out in an
ex parte
application
and no such circumstances are set out in the petition. On the
construction of the court orders of 1956 and 1957, incorporating
Annexure D, in context the court was not asked to amend the will
contra the courts legal capacity to do so.
My interpretation of
the order is fortified by what transpired with the execution of the
order. As set out in the Administrator
Cape-matter supra the order is
the executive part of a judgment which defines what the Court
requires to be done or not to be done,
for all the parties to know
and understand.
If regard is then
had to the documents in plaintiffs Bundle D the order was executed in
terms of the will and order, the one not
contradicting the other. The
“Akte van Verdeling” states on p3 thereof:
“
.kragtens
‘n Bevel gedateer te Pretoria op die 33 ste dag van November,
1956, ooreengekom het om genoemde grond te verdeel
ooreenkomstig
hulle repektiewe belange daarin en elkeen afsonderlik transport te
neem van sodanige onverdeelde gedeeltes”
and
then Swart and Heyns are referred to as holding a % share of the
farm, not in 3/8. The “Akte van Transport” refers
to the
orders and the will and then transfers to Swart and Heyns in trust
for the children born or to be born:
“
SEKER
Drie/Vierde (3/4de) aandeel van die Plaas KLIPFONTEIN Nr. 95, gelee
in die distrik MIDDELBURG;”
The parties also
interpreted the order as I do.
[14]
I accordingly find that the testamentary bequest of the testatrix was
not on an interpretation of the court orders of 22 November
1956 and
30 April 1957 altered to a regime of
per
stirpes.
[15]
This finding does then not require me to make a finding whether such
an alteration would be binding as against the Defendants
or otherwise
competent for the court to make. I do however
obiter
comment
on this question below. The
functus
officio
principle
is entrenched in our law, however if a court made an order
ultra
vires
then
that order need not be taken on appeal;
S
v Liau
2005
SACR
498
on 501 g-h. The Supreme Court of Appeal in fact in
S
v Absolom
1989
(3) S A 154
(A) on 164E-GF found that such an order can”:eenvoudig
geignoreer word.” In the Liau- matter supra on p502 c-d the
court found that court decisions are valid until they are set aside,
but it need not be done on appeal. It can be done collaterally
by any
competent court. The defendant can raise it as a defence.
[16] The plaintiffs
argued that even if they were unsuccessful they must not be held
liable for costs. The argument was that they
came to court on a court
order and can not be penalized for doing so. I can not agree with
this argument, they came to court on
the interpretation of the court
order that was in issue. I find that the normal rule that costs
should follow the order must apply.
[17] I accordingly
make the following order:
17.1.
I accordingly find that the testamentary bequest of the testatrix was
not on an interpretation of the court orders of 22 November
1956 and
30 April 1957 altered to a regime of
per
stirpes.
17.2. The plaintiffs
are to carry the costs, the costs to include the costs of two
counsel.
S.
Potterill Judge of the High Court
Delivered
on: 7 May 2010
Attorney/s for
the 1
st
to 3
rd
Plaintiffs:
VAN DER MERWE
& ASSOCIATES
Pretoria
Gauteng
Tel: +27(0)12 343
5432
Attorney/s for
the 1
st
to 7
th
Defendants
STRAUSS DALY INC
Umhlanga Rocks,
KwaZulu-Natal
Tel: +27(0)31 570
5676/95
&
ARTHUR CHANNON
ATTORNEYS
Pretoria
Gauteng
Tel: +27(0)12 993
5459