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[2019] ZAECPEHC 25
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De Wet N.O v Barkhuizen and Others (2330/2018) [2019] ZAECPEHC 25 (30 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: 2330/2018
Date heard: 14 March 2019
Date delivered: 30 April
2019
In
the matter between:
JAN
ABRAHAM DE WET
N.O.
Applicant
and
MARITSA
BARKHUIZEN
First
Respondent
DEON
VAN DER MERWE
Second Respondent
THE
MASTER OF THE HIGH COURT
Third Respondent
THE
REGISTRAR OF DEEDS
(KING
WILLIAMS TOWN)
Fourth Respondent
THE
REGISTRAR OF DEEDS
(CAPE
TOWN)
Fifth
Respondent
JUDGMENT
RUGUNANAN,
AJ
[1]
The applicant in his capacity as
curator bonis
seeks an order
setting aside the sale and transfer of the immovable property
(hereinafter referred to as “the farm”
or “the
property”) described as:
Remainder
Portion 1 (Kaalsfontein Suid) of the farm Kaalsfontein Number 259 in
the Inkwezi Municipality, Division of Jansenville,
Province of the
Eastern Cape, (“Kaalsfontein”);
from
the estate of Christo Johannes Kleinhans (“the patient”)
to that of the first respondent on 6 August 2013.
[2]
The applicant commenced proceedings against the respondents with a
notice of motion
reflecting truncated time periods for filing notice
of opposition and answering affidavits. The notice of motion
incorporated relief
sought in two parts namely,
Part A
and
Part B
. In respect of the relief in
Part A
, the notice
of motion indicated that the application was set down for 26 July
2018 as an urgent matter. On 25 July 2018 the applicant
removed the
matter from the roll. The circumstances occasioning the removal are
dealt with later in this judgment where the issue
of costs is
addressed. The relief aforementioned is contained in
Part B
of
the notice of motion to which this judgment is directed. Save for the
first and second respondents, the remaining respondents
have not
entered the fray in these proceedings. Parenthetically the patient’s
wife, Heidi Kleinhans, and the patient himself
have deposed to
affidavits supporting the first and second respondents’
opposition to these proceedings and expressing the
wish that same be
dismissed with costs.
[3]
The patient is the youngest of six children of Stephanus Andries
Hendrik Kleinhans
and Georgina Johanna Kleinhans. His siblings in
order of seniority, commencing with the eldest, include: (i)
Stephanus Johannes
Kleinhans (a brother); (ii) Georgina Johanna
Rheeder (a sister); (iii) Deon Kleinhans (a brother); (iv) Johannes
Jurgens Kleinhans
(a brother); and (v) Mathilda van Eeden (a sister).
[4]
The patient’s parents executed a joint will on 6 November 1998
in terms of which
they bequeathed,
inter alia
, the farm to the
patient subject to registration of a usufruct in favour of his
mother.
[5]
It is common cause that the will required the patient to first offer
the farm to his
brothers starting with the eldest to the youngest in
the event that he intended to sell it. When the patient’s
father passed
away on 25 April 2006, the farm was transferred to the
patient (as owner of the bare dominium) and a usufruct was registered
in
favour of his mother (as usufruct holder). On 26 February 2013 the
patient and his mother concluded an agreement of sale with the
first
respondent. The first respondent is the daughter of the patient’s
eldest brother Stephanus Johannes Kleinhans.
[6]
In terms of the sale agreement the patient sold the farm to the first
respondent for
the amount of R1 100 000.00 and the
patient’s mother agreed to the cancellation, without value, of
the usufruct
held by her over the property. The agreement was signed
by the parties in the office of the second respondent. The second
respondent
is an attorney whose office prepared the documents
required for effecting transfer of the farm, including the agreement
of sale.
His office engaged a correspondent in Cape Town who
ultimately attended to the transfer of the property into the name of
the first
respondent. On 6 August 2013 transfer of the farm was
registered in her name.
[7]
In the events that followed the patient married Heidi Kleinhans on 6
July 2016. A
few months later the patient’s his mother passed
away on 16 November 2016. On 19 June 2017, and at the instance of
Mathilda
van Eeden, the patient was evaluated by a psychologist. This
culminated in the appointment of the applicant as
curator bonis
to the patient on 27 February 2018. The patient was then aged 47. On
4 June 2018 he qualified for renewal of his firearm licence
and
presently holds a valid driver’s licence. The applicant deposed
to the founding affidavit in this application on 29 June
2018.
Letters of curatorship were granted in the name of the applicant by
the Master of the High Court on 2 July 2018. Proceedings
in this
matter were instituted on 3 July 2018.
[8]
In
resisting the relief sought by the applicant in
Part
B
of
the notice of motion, the first and second respondents placed the
validity of the founding affidavit in issue, contending that
it is a
nullity and void
ab
initio
for being in contravention of section 71(1) of the Administration of
Estates Act
[1]
(“the
Act”).
[9]
Before dealing with section 71(1) of the Act, it would be convenient
to set out the
salient provisions of the order in terms of which the
applicant was appointed
curator bonis
to the patient. The
order provided,
inter alia
, as follows:
“
1.
THAT JAN ABRAHAM DE WET of DE WET ATTORNEYS, practising at 2 Twelfth
Avenue, Melkbosstrand,
Western Cape and a member of the Cape Law
Society be and is hereby appointed curator bonis to the (sic) CHRISTO
JOHANNES KLEINHANS
(“the patient”), with the following
powers:
1.1
to receive, take care of, control and administer the property
constituting the estate of
the patient;
1.2
to institute any proceedings that may be necessary in the interest of
the patient and of
the due and proper administration of the patient’s
property;
1.3.
…;
1.4
…;
1.5
…;
1.6
…;
1.7
…;
I.8
…;
1.9
…;
1.10
…;
1.11
…;
1.12
…;
2.
THAT the powers conferred upon the said curator bonis in
sub-paragraphs 1.1 to
1.10 shall be exercised subject to the approval
of the Master.
3.
… .
[10]
The order appointing the
curator bonis
manifests the following
attributes: It does not declare the patient incapable of managing his
affairs. It specifically authorises
the
curator bonis
to
perform functions in relation to the receipt, care, control and
administration of the property in the estate of the patient and
to
institute any proceedings in relation to such property. The order
does not operate retrospectively and the exercise of the powers
conferred on the
curator bonis
are dependant or conditional
upon approval by the Master of the High Court.
[11]
Section 71(1) of the Act may conveniently be quoted in full:
“
Certain
persons not to administer property as tutor or curator without
letters of tutorship or curatorship
-
(1) No person who has been nominated,
appointed or assumed as provided in section seventy-two shall take
care of or administer any property belonging to the minor or
other
person concerned, or carry on any business or undertaking of the
minor or other person, unless he is authorised to do so
under letters
of tutorship or curatorship, as the case may be, granted or signed
and sealed under this Act, or under an endorsement
made under the
said section.”
[12]
The letters of curatorship granted by the Master contains the
following wording:
“
This is to
certify that Jan Abraham De Wet … has been duly appointed and
hereby authorised to act as curator bonis of the
estate of Christo
Jacobus Kleinhans … in terms of the Order of the High Court of
South Africa (Eastern Cape Division: Grahamstown)
dated 27 February
2018 with the powers set out in paragraph 1.1 to 1.10 of the said
Order of Court, which powers are to be exercised
subject to my
approval in terms of paragraph 2 of the Order of Court.”
[13]
Referring to the first and second respondents’ notice in terms
of Uniform Rule
6(5)(d)(iii) and her heads of argument, Ms Morgan
contended that the applicant’s founding affidavit is null and
void
ab initio
on the basis that when the applicant deposed
thereto on 29 June 2018 he did so in contravention of the peremptory
provisions of
section 71(1) of the Act in that he was not in receipt
of letters of curatorship granted by the Master. Ms Morgan contended
that
the powers conferred on the applicant as
curator bonis
were dependant or conditional upon approval by the Master and that
the
ab initio
nullity of the founding affidavit precluded its
resuscitation through ratification or subsequent approval by the
Master when letters
of curatorship were granted. In support of these
contentions Ms Morgan relied on the case of
Shea v Legator
McKenna and Others
[2008] 1 All SA 491
(D)
.
[14]
In
opposition to the challenge against the applicant’s authority
Mr Bothma essentially raised two arguments. He contended,
firstly,
that the power conferred on the
curator
bonis
in paragraph 1.2 of the order of court is one ordinarily associated
with a
curator
ad litem
and is, for that reason, extraneous to section 71(1) of the Act.
Stated otherwise, the argument is that it was not required of
the
applicant as
curator
bonis
to have been authorised under letters of curatorship to depose to the
founding affidavit for instituting these proceedings because
section
71(1) is applicable to the administration or management of property
in the estate of the patient. Secondly, Mr Bothma argued
that the
challenge by the first and second respondents is in respect of the
applicant’s authority to depose to the founding
affidavit
before the granting of letters of curatorship; and not to the
institution of these proceedings, an event which occurred
on 3 July
2018. In support of this submission Mr Bothma relied on the following
passage in
Ganes
and Another v Telecom Namibia Ltd
,
[2]
where it is stated that:
“
…
it is
irrelevant whether Hanke had been authorised to depose to the
founding affidavit. The deponent to an affidavit in motion
proceedings need not be authorised by the party concerned to depose
to the affidavit. It is the institution of the proceedings and
the
prosecution thereof which must be authorised. In the present case the
proceedings were instituted and prosecuted by a firm
of attorneys
purporting to act on behalf of the respondent. In an affidavit filed
together with the notice of motion a Mr Kurtz
stated that he was a
director in the firm of attorneys acting on behalf of the respondent
and that such firm of attorneys was duly
appointed to represent the
respondent. That statement has not been challenged by the appellants.
It must, therefore be accepted
that the institution of proceedings
was duly authorised. In any event, rule 7 provides a procedure to be
followed by a respondent
who wishes to challenge the authority of an
attorney who instituted motion proceedings on behalf of an applicant.
The appellants
did not avail themselves of the procedure so
provided.”
[15]
It is my view that the opposition to the challenge against the
applicant’s
authority is misplaced and that the applicant’s
response thereto is unsound for the reasons indicated below.
[16]
It is illogical to contend that the power conferred on the
curator
bonis
in paragraph 1.2 of the order of court is extraneous to
section 71(1) of the Act. The composition of paragraph 1.2 plainly
conveys
that the power to institute proceedings conferred on the
applicant as
curator bonis
is one that is intimately
associated with the patient’s property. Furthermore, as pointed
out by Ms Morgan, it incontrovertibly
appears from the applicant’s
replying affidavit that disbursements attendant on the proceedings
for the appointment of a
curator ad litem
, including those for
the appointment of the
curator bonis
and disbursements
relevant to the present application have thus far been met from the
patient’s estate. The first point of
contention raised by Mr
Bothma is therefore unsustainable.
[17]
Dealing with the second point and reverting to the passage in
Ganes
,
I respectfully entertain doubt whether it is applicable as a general
proposition to situations affected by the provisions of section
71(1)
of the Act. Section 71(1) received judicial consideration in
Bouwer
NO Saambou Bank Bpk
1993 (4) SA 492
(T)
. A considered
analysis of the authorities and relevant legal principles led the
court in
Bouwer
to conclude that acts carried out or
otherwise performed by a
curator bonis,
though appointed by
the court but not yet in receipt of letters of curatorship granted by
the Master, were nullities and of no
legal force or effect. This
conclusion was informed by the primary consideration that in enacting
section 71(1) of the Act the
intention of the legislature was not to
guard or protect the interests of third parties, but to protect the
interests of the person
(i.e. the
de cujus
) on whose behalf
the
curator bonis
was appointed to act. Thus it could not be
accepted that measures intended for the protection of the
de cujus
(such as the need for the
curator bonis
to find security to
the satisfaction of the Master as a necessary prerequisite to the
granting of letters of curatorship), were
not intended by the
legislature to be of fundamental importance and that acts in conflict
therewith would still be valid.
[18]
The
findings and conclusion reached in
Bouwer
found favour with Motata AJ (as he then was) in
Shea
v Legator McKenna and Others.
[3]
Motata AJ, in addition, considered judgments
[4]
dealing with section 6(1) of the Trust Property Control Act No. 57 of
1988 (“the
TPCA
”).
Section 6(1) is comparably worded to section 71(1)
supra
.
[5]
By parity of reasoning section 6(1) of the
TPCA
,
like section 71(1), precludes the relevant functionary from acting
unless authorised thereto in writing by the Master. In the
enactment
of section 6(1) of the
TPCA
and section 71(1) of the Administration of Estates Act, the intention
of the legislature undoubtedly was informed by a common consideration
namely, the protection of the interests of the
de
cujus
on whose behalf the nominated functionary was in each instance
appointed to act. From this perspective where an act is a nullity
ab
initio
because the trustee or
curator
bonis
performed prior to the granting of written authority, neither the
court nor the Master is cloaked with a discretion to retrospectively
validate it.
[19]
Looking
further into the Administration of Estates Act, one finds in section
102(1)(g) an attribute that provides for the imposition
of a penal
sanction in the event of a breach of any of the provisions in section
71(1). This fortifies the conclusion that the
legislature clearly
intended to visit with nullity any act or conduct in contravention of
section 71(1).
[6]
[20]
In the circumstances I am in respectful agreement with the
authorities and legal
principles dealt with in
Shea v Legator
McKenna and Others
. I am satisfied that the founding
affidavit is null and void
ab initio
and that the application
must, in consequence be dismissed.
[21]
Turning to the issue of costs, the notice of motion incorporated
relief in two parts,
namely
Part A
and
Part B
. In
respect of the relief sought in
Part A
, the notice of motion
specifically indicated that the matter will be heard on Thursday, 26
July 2018 as one of urgency. No certificate
of urgency as required by
rule 12 of the Joint Rules of Practice of the High Courts of the
Eastern Cape Province was filed of record.
The relief sought by the
applicant in
Part A
concerned the production of various
documents pertaining to the transfer of the property,
inter-alia
bank statements in relation thereto, the agreement of sale
supra
,
the transfer duty receipt, and the second respondent’s file
notes pertaining to scheduled attendances with the patient and
his
mother. Ms Morgan contended that notwithstanding compliance with
Part
A
by the first and second respondents, and despite their attorney
of record directing correspondence objecting to the alleged urgency,
the applicant nonetheless chose to proceed with the matter on an
urgent basis without amending the notice of motion as indicated
in
paragraph 4 of the below-mentioned “Note To The Presiding
Judge”.
[22]
On the afternoon of 25 July 2018 the applicant unilaterally removed
the matter from
the opposed motion court roll. The notice of removal
did not include a tender for the first and second respondent’s
costs.
Simultaneously with such notice, the applicant filed a "Note
To The Presiding Judge". It reads:
“
(1)
The application was not intended to be set down on an urgent basis
and therefore the provisions of
paragraph 12 of the Eastern Cape
practice directives were not complied with;
(2)
The papers were drafted according to Western Cape practice directives
[for] motion court proceedings.
(3)
The application should not have been placed on the opposed roll for
26 July 2018 by the Registrar.
(4)
The application will be brought on an amended notice of motion in the
ordinary course in terms
of the rules of court.”
[23]
The applicant, by profession, is a practising attorney and so is Ms
Johannie Lötter
of Lötter Attorneys who represents him. In
instituting these proceedings without the requisite certificate of
urgency, it
appears that neither one of them had prior recourse to
the applicable rule of practice in this division. If they did, they
did
so irreverently; and to censure the registrar for enrolling the
matter is disingenuous. Such conduct on their part may be attributed
to negligence, unreasonableness or even bad faith.
[24]
In
January
v Standard Bank of South Africa Ltd
,
[7]
Goosen J stated that:
“
A failure to
file a certificate which not only accords with the provisions of the
rules of practice and which manifestly does not
meet its purpose may
well result in the matter being struck from the roll. It may also, in
in an appropriate matter, result in
an appropriate costs order being
made, not against a litigant but against the practitioner responsible
for the failure to comply
with the rules of practice.”
[25]
Regard
being had to all the above Ms Morgan contended for an order of costs
de bonis
propriis
against the applicant and his attorney jointly and severally on an
attorney-client scale, the one paying the other to be absolved.
She
urged for the same order in the event of the issue raised in the
first and second respondents’ rule 6(5)(d)(iii) notice
being
decided in their favour by dismissing the relief in
Part
B
of
the notice of motion. The principle underlying such costs orders is
that the conduct in connection with the litigation in question
must
have been
mala
fide,
negligent or unreasonable to justify a personal order for costs
against a litigant occupying a fiduciary capacity.
[8]
In this regard, facts indicating that the sale of the farm took place
on 26 February 2013, that the applicant was appointed
curator
bonis
on 27 February 2018, and that this application was launched on an
urgent basis on 3 July 2018, (a period of more than 5 years after
the
farm was sold and more than 4 months after the
curator
bonis
was appointed), should not be overlooked on the issue of costs.
[26]
Mr Bothma correctly conceded that the application was not initiated
with the required
certificate of urgency and for that reason it had
not been properly set down on truncated time periods. He did not
address me on
the circumstances attendant on the removal of the
matter from the roll on 25 July 2018, nor did he take issue with the
contents
of the “Note To The Presiding Judge”. He urged
however that I apply my discretion by not awarding costs on the basis
contended for by Ms Morgan. I am unable to do so for the reason that
there is ample justification to award costs as contended for
by Ms
Morgan.
[27]
In the circumstances the following order issues:
[27.1]
The application is dismissed;
[27.2]
The costs in respect of
Part A
and
Part B
of the notice
of motion are to be paid by the Applicant and Ms Johannie Lötter
jointly and severally,
de bonis propriis
on an attorney-client
scale, the one paying the other to be absolved.
_________________________
S
RUGUNANAN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Adv. P. S. Bothma instructed by Lötter Attorneys, Panorama c/o
Rushmere Noach Inc., Port Elizabeth.
For
First and Second
Respondents:
Adv. M. P. Morgan instructed by Wouter Minnie Attorneys, Port
Elizabeth.
[1]
Act 66 of 1965, as amended.
[2]
2004 (3) SA 615
(SCA) at paragraph [19]
[3]
[2008] 1 All SA 491
(D) at pages 497h-498b
[4]
At page 498 b-c where reference is made to
Simplex
(Pty) Limited v Van der Merwe and Others
NNO
1996 (1) SA 111
(W) and
Van
der Merwe v Van der Merwe en Andere
2000 (2) SA 519 (C)
[5]
section 6(1) reads: “Any person whose appointment as trustee
in terms of a trust instrument, or a court order comes into
force
after the commencement of this Act, shall act in that capacity only
if authorised thereto in writing by the Master.”
[6]
Shea v
Legator McKenna and Others
supra
at page 499e
[7]
[2015] JOL 34176
(ECG) at paragraph 41
[8]
Vermaak’s
Executor v Vermaak’s Heirs
1909 TS 679
at page 691