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[2023] ZAECQBHC 15
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Geza and Others v Standard Trust Limited and Others (3534/2021) [2023] ZAECQBHC 15 (14 March 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISON, GQEBERHA)
Case
No: 3534/2021
Date
Heard: 2 March 2023
Date
Delivered: 14 March 2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
In
the matter between:
LUTHO
GEZA
First Applicant
AMANDA
NYONI (born MNYAZI)
Second Applicant
AYABONGA
GEZA
Third Applicant
and
STANDARD
TRUST LIMITED
First
Respondent
VUYOLEWTHU
JOHN
Second Respondent
THE
MASTER OF THE HIGH COURT,
GQEBERHA
Third Respondent
JUDGMENT
EKSTEEN
J:
[1]
This matter concerns the interpretation of
a joint will executed by Patience Nonthemba Geza (the testatrix) and
Mzimkhulu Wellington
Geza (the testator), to whom I shall refer
jointly as “the testators”. The first applicant, Mr
Lutho Geza, and
the third applicant, Mr Ayabonga Geza are the
children born of the marriage between the testatrix and testator.
The second
applicant, Ms Amanda Nyoni is the daughter of the
testatrix born out of wedlock prior to her marriage. The second
respondent,
Mr Voyolwethu John, is the biological son of the
testator, born out of wedlock before his marriage to the testatrix.
The
first respondent is the executor of the testators’ estate
and the third respondent is the Master of the High Court, Gqeberha.
[2]
As I said, the testators executed a joint
will on 3 June 2008. Prior to the execution of the will they
completed a will application
to nominate an executor for their estate
(the will application). The will application form sought several
personal particulars
of the testators. It requested
the testators to state the “full names of children from (their)
present
marriage”. The names of three applicants were
inserted. It proceeded to seek the “full names of
children
from (their) previous marriages” and the testators
left this section blank. The will application provided no
instruction
in respect of any bequests to any of the children.
At the conclusion of the application form, immediately prior to the
signatures
of the two testators, the form recorded:
“
Your
signature to this application does not constitute a will and merely
represents an application for the drafting of one.”
[3]
The will was duly executed on the same day,
3 June 2008. It provided in the first paragraph for the
appointment of the beneficiaries
and recorded:
“
1.1
If one of us survives the other for 10 calendar days, the survivor
will be the sole heir of the residue
of the estate of the first dying
of us. Should neither of us survive the other for 10 full
calendar days or should the survivor
die without leaving a further
valid will, we bequeath the residue of our estates or that of the
survivor, as the case may be, to
our children, each child to receive
an equal share. Should any of our children die before the
survivor of us, his/her share
of the residue will devolve on his/her
descendants by representation. If there are no descendants,
his/her share will accrue
to our remaining children or their
descendants per stirpes.”
[4]
It is common ground that the testatrix died
on 28 October 2020 and the testator passed away on 9 November 2020,
eleven clear days
after the testatrix. He had left no further
valid will and, accordingly, the residue of the estates of the
testators was
bequeathed to their children. The bequest led to
a dispute as to the intended meaning of “our children” in
clause
1.1 of the will. The applicants contended that they are
the only beneficiaries under the will, while the respondents argued
that Mr John was included in the term “our children”.
Hence the application in which the applicants sought a
declaratory
order that the words “our children” in clause 1.1 of the
will dated 3 June 2008 should be interpreted to
refer only to them.
[5]
Mr John filed a counter application in
which he sought a declarator that the term “our children”
includes him as a beneficiary
in the estate of the testators.
He also sought an order, in the alternative, that the will be
declared invalid for want of
identifying the heirs, by name, and he
contended for a material non-joinder in that the “estate”
of the testators had
not been joined. The latter two arguments
were not pursued.
[6]
The evidence presented on behalf of the
applicants rests on three pillars. Firstly, the will
application which, as I have
explained, lists the three applicants as
the children born from the marriage of the testatrix and the
testator. Secondly,
they alleged that the testator had had a
bad relationship with Mr John and had effectively disowned him, and,
thirdly, that Mr
John was arrested in 2016 in connection with an
armed robbery and that he has been incarcerated ever since.
This, it was
contended, constituted the final break in the
relationship between the testators and Mr John. A supporting
affidavit by one
Sikiwe, an attorney of this court and a
long-standing friend of the testator, was delivered in which he
explained that the testator
was so deeply affected by the arrest of
Mr John that he had said that he intended to disinherit him entirely
as a result thereof.
I shall revert to the evidence later.
[7]
In
the present case we are concerned merely with the interpretation of
the testators’ will and not with its rectification
and
therefore we need not refer to the principles set out in cases such
as
Botha
and Others
[1]
and
Ex
Parte Van der Spuy
[2]
.
In the interpretation of a will the object is not to ascertain what
the testator meant to do, but his intention as expressed
in the
will.
[3]
Thus, the
“question is not what any words might mean apart from the
testator’s intention, but what the testator
meant by using
them. That does not mean of course that effect can be given to
an intention or a possible intention on the
part of the testator
which has not been embodied in words employed by him in his
will”.
[4]
[8]
Thus,
Voet
[5]
declared:
“
Some
wishes of testators are clear and transparent, others are vague and
doubtful. If there is no doubtfulness in the words,
no question
must be raised as to the wish either.”
[9]
This,
of course, does not mean that the will could be interpreted in
isolation. As in the case of the interpretation of any
other
document consideration must be given to the language used in the
light of the ordinary rules of grammar and syntax; the context
in
which the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its
production.
[6]
This
accords with the well-established rule in the interpretation of wills
articulated by Blackburn J in
Allgood
[7]
where
it was said that “in construing a will, the court is entitled
to put itself in the position of the testator, and to
consider all
material facts and circumstances known to the testator with reference
to which he is to be taken to have used the
words in the will, and
then to declare what is the intention evidenced by the words used
with reference to those facts and circumstances
which were …
in the mind of the testator when he used those words”.
[10]
This
general formulation has become known in succession matters as the
“armchair rule”. However, in
Lello
[8]
the
Supreme Court of Appeal stressed that the armchair rule does not
imply that “the intention of the testator may be sought
by
reasoning or conjecture not founded upon the scheme and terms of the
will. … It is in the will itself that the
indications
and pointers must be sought, but it is permissible and sometimes
essential to read and interpret the will in the light
of the relevant
circumstances existing at the time of its making.”
[11]
This
brings me to the question of admissibility of extrinsic evidence.
The approach was authoritatively articulated by Corbett
J in
Allen
[9]
as follows:
“
There
was some debate at the Bar regarding the extent to which the Court
could look to the evidence of background facts and surrounding
circumstances in the interpretation of the bequest in issue. …
Briefly, the position is as follows: Basically the duty of
the Court
is to ascertain not what the testator meant to do when he made his
will but what his intention is, as expressed in his
will.
Consequently, where his intention appears clearly from the words of
the will, it is not permissible to use evidence
of surrounding
circumstances or other external facts to show that the testator must
have had some different intention. At the same
time no will can be
analysed
in vacuo
.
In interpreting a will the Court is entitled to have regard to the
material facts and circumstances known to the testator when
he made
it: it puts itself in the testator's armchair. Moreover, the
process of interpretation invariably involves the ascertainment
of
the association between the words and external objects and evidence
is admissible in order to identify these objects. This process
of
applying the words of the will to external objects through the medium
of extrinsic evidence may reveal what is termed a latent
ambiguity in
that the words, though intended to apply to one object, are in
fact equally capable of applying to two or more
objects (known
technically as an 'equivocation') or in that the words do not apply
clearly to any specific object, as where they
do not describe the
object or do not describe it accurately. In both these instances
additional extrinsic evidence is admissible
in order to
determine, if possible, the true object of the bequest, but, except
in the case of an equivocation, such evidence
may not include
extrinsic declarations of the testator's intention.”
[12]
I
revert to the bequest in issue. As I have said, the first and
third applicants are the children born of the union between
the
testators. Ms Nyoni and Mr John are children born out of
wedlock to the testatrix and the testator, respectively, prior
to
their marriage. Section 2D of the Wills Act
[10]
provides that:
“
(1)
In the interpretation of a will, unless the context otherwise
indicates-
(a)
…
(b)
the fact
that any person was born out of wedlock shall be ignored in
determining his relationship to the testator or another person
for
the purposes of a will.”
[13]
Aided
by this legislative injunction the ineluctable consequence is that
both Ms Nyoni and Mr John are, unless the context indicates
otherwise, included in the term “our children”.
There is no doubtfulness in the words and, as
Voet
said, no question should be raised as to the wish of the testators.
“Context” referred to in s 2D of the Wills
Act must be
sought in the scheme and terms of the will,
[11]
not in extrinsic evidence which seeks to change the clear intention
expressed in the will.
[12]
[14]
I
revert to the evidence upon which the applicants rely, as adumbrated
earlier. As I have said, the testators undeniably misunderstood
the question posed in the will application as is demonstrated by
their reflecting the second applicant as a child born of their
marriage. The evidence presented in this application casts no
light on how they in fact understood the question and the form
makes
no provision for the listing of children born out of wedlock.
The evidence leaves no doubt that it was known to the
testators when
the will was executed that Mr John was the testator’s son.
If they had wanted to exclude him, it is
inconceivable that they
would not have said so. The testators were guided in the
preparation of the will by first respondent,
who must have known that
there is, in law, a presumption against disinherison in favour of
equal treatment of children in the interpretation
of a will.
[13]
[15]
In respect of
the alleged poor relationship which the testator had with Mr John
there is a clear and extensive dispute of fact on
the papers.
Mr John did not meet the allegations with a bald denial, but set out
a clear version of his relationship with
the testator in which he has
addressed the individual assertions of applicants, supported by
detailed confirmatory affidavits by
two other members of the direct
family.
[16]
It is common
cause that Mr John had resided with the testators at some stage, as a
child. On either version there clearly
was friction between
them which led to Mr John leaving them to live with his maternal
family and dropping out of school.
These events were a
disappointment to the testator, and Mr John, but Mr John says that
his father remained actively involved in
his life and continued to
support him financially. This account accords with the
affidavit of Mr Sikiwe (filed on behalf
of the applicants) which
suggests that it was only after the arrest of Mr John that the
testator had raised his intention to disinherit
Mr John. To the
extent that this evidence may be admissible, it seems to me to be
destructive of the applicants’ argument
that the testators had
already disinherited him in 2008. The dispute of fact is real
and cannot be resolved on the papers.
[17]
The
applicants did not request for these issues to be referred to oral
evidence and the approach articulated in
Plascon-Evans
Paints
[14]
finds application. For purposes of the resolution of the
present application, the version of Mr John must therefore prevail.
[18]
Finally, much
was made in the papers of the testator’s grave disappointment
with the conduct of his son who had become engaged
in criminal
activity in 2016. These events and the testators’
response thereto are entirely irrelevant to the interpretation
of the
will executed in 2008 and they must be disregarded for purposes of
the adjudication of the application.
[19]
The question
which must therefore be considered is whether the will application
form, on its own, can give rise to a latent ambiguity
as described in
Allen
.
Ms
Ellis
,
on behalf of the applicants, acknowledged, correctly in my view, that
no equivocation arises from the words used in the will.
I do
not think that a latent ambiguity of the second kind described by
Corbett J in
Allen
arises
either. “Our children” refers clearly to all their
children and describes the heirs accurately. As
a result, the
application must be dismissed and the main relief claimed in the
counter-application must follow.
[20]
There remain
two further issues. When the matter was called before us on 2
March 2023 Mr
Ngqeza,
acting on behalf of Mr John, moved an application for the
postponement of the matter. The application was dismissed and I
indicated that I would provide reasons for the dismissal together
with the judgment on the merits. The facts material to
the
dismissal of the application are also material to the costs order
which I intend to make. I shall accordingly consider
the two
issues together herein.
[21]
The
court file reflects that on 19 January 2023 the parties were advised
that the matter would be set down for hearing as an opposed
application on 2 March 2023, subject to compliance with paragraphs
8(e) and 15A of the Joint Rules of the Eastern Cape Division
(the
joint rules).
[15]
The
applicants duly filed their heads of argument on 8 February 2023 in
compliance with paragraph 8(e) of the joint rules
and a joint
practice note pursuant to paragraph 15A of the joint rules was
delivered on 20 February 2023. The joint practice
note recorded
that Mr John had not yet filed heads of argument.
[22]
Mr John’s
heads of argument were due in terms of paragraph 8(e) of the joint
rules, on 16 February 2023. At 12h37 on
16 February 2023, Mr
John’s attorneys of record addressed an email communication to
the registrar of the Deputy Judge President
in which they advised
that they had sought an extension from the applicants’
attorneys for the filing of their heads of argument.
The
communication proceeded:
“
It
is therefore by agreement by both parties that we file our Heads of
Argument before the end of business day of 20 February 2023
(monday)
.
(Sic)
This
email is to request indulgence from the DJP for an extension for the
filing of our Heads of Argument at court.”
[23]
The Deputy
Judge President granted them an extension. However,
notwithstanding the undertaking, heads of argument were not
forthcoming. Rather, at 14h45 on 20 February 2023 Mr John’s
attorneys addressed a further communication to the clerk
of the civil
court at the High Court, Gqeberha. It recorded:
“
Our
Counsel has also advised us this morning that she has not finalised
her heads and by the look of it they will not be finalised
by the end
of business today and as such, we humbly request for a further
extension for filing our heads till end of business day
wednesday
(
sic)
,
22/02/2023.
We
have written to the other parties and they responded that they cannot
give us an extension but they will take no points and that
we must
write to the DJP asking for such an extension.
We
await your response herein.”
[24]
The Deputy
Judge President again granted them a further indulgence to file heads
of argument by 22 February 2023. Again heads
of argument were
not forthcoming, no explanation was proffered and no further
extension was sought.
[25]
When the
matter was called on 2 March 2023 Mr
Ngqeza
advised
that he had been instructed to move an application for a
postponement. The founding affidavit in the application for
a
postponement, which was handed to us on the morning of the hearing,
recorded that Adv Masiza had been instructed on behalf of
Mr John and
attended at a case flow management meeting before the Deputy Judge
President on 15 February 2023. There she gave
an undertaking
that the heads of argument would be ready for delivery on 17 February
2023. However, on 16 February she advised
Mr
Ngqeza
that she
will not proceed to draft heads of argument without financial
instructions. Hence the first request for an extension
of
time.
[26]
On 19 February
2023, Mr
Ngqeza
obtained
an acknowledgement of debt from Mr John’s aunt to cover the
expenses in respect of the opposed application.
However,
counsel advised that an acknowledgment of debt was insufficient and
that she required that Mr
Ngqeza
be placed in funds before she would proceed. She, accordingly
withdrew on 28 February 2023. None of these financial
difficulties were disclosed to the Deputy Judge President when the
repeated undertakings were given, knowing that they may not
be met.
[27]
In moving the
application for a postponement Mr
Ngqeza
acknowledged
that he had been involved in the application from its inception as Mr
John’s attorney of record but, in his view,
although he had
extensive knowledge of the facts and the issues involved, it was
desirable to instruct counsel to argue the matter.
He confirmed
that Ms Masiza had acted on his instructions in giving the
undertakings to the Deputy Judge President and acknowledged
that he
had not been placed in funds at the time when she was instructed.
[28]
The
principles applicable to an application for a postponement of an
application were considered by Plasket J in
Persadh
[16]
as follows:
“
First,
as that party seeks an indulgence he or she must show good cause for
the interference with his or her opponent's procedural
right to
proceed and with the general interest of justice in having the matter
finalised; secondly, the court is entrusted
with a
discretion as to whether to grant or refuse the indulgence; thirdly,
a court should be slow to refuse a postponement where
the reasons for
the applicant's inability to proceed has (
sic)
been fully explained, where it is not a
delaying tactic and where justice demands that a party should have
further time for presenting
his or her case; fourthly, the
prejudice that the parties may or may not suffer must be considered;
and, fifthly, the
usual rule is that the party who is responsible for
the postponement must pay the wasted costs.”
[29]
As I have
said, Mr
Ngqeza
has confirmed that he has been involved in the matter from its
inception. He is an attorney with right of audience in the
high
court and was fully acquainted with the issues in the application.
He was available to attend to the matter himself,
as evidenced by his
appearance. When the application for a postponement was
dismissed Mr
Ngqeza
immediately produced heads of argument prepared in advance. The
reasons advanced for the failure to file heads of argument
in
accordance with the specific undertakings given to the Deputy Judge
President, pre-existed the undertakings and no new circumstances
arose. Mr
Ngqeza
had never
been placed in funds. In the circumstances, I do not consider
that good cause has been shown to interfere with the
applicants’
procedural rights to proceed. Mr John has not shown an
inability to proceed but merely contends that it
would be desirable
for counsel to be employed. That is not a reason for a
postponement. In the circumstances I did
not consider that
justice demanded that further time had to be afforded for the
presentation of his case. For these reasons
the application for
a postponement was refused and it is appropriate that Mr John pay the
costs occasioned by the application.
[30]
That
brings me to the costs of the main application and the counter
application. As I have said the matter was subjected to
case
flow management, which is intended to promote the efficient,
effective, and expeditious disposal of opposed proceedings.
The
remarks of Peter AJ in
Venmop
275
,
[17]
although in the context of trial proceedings, are appropriate in this
matter. There he observed:
“
[7]
The efficient conduct of litigation has as its object the judicial
resolution of disputes,
optimising both expedition and economy. The
conduct and finalisation of litigation in a speedy and cost-efficient
manner is a collaborative
effort. … The role of
legal representatives has two key aspects. First is the
supervision, organisation and presentation
of evidence of the
witnesses and, secondly, the formulation and presentation of argument
in support of a litigant's case. The diligent
observation of those
roles facilitates the role of the judicial officer, which is to
arrive at a reasoned determination of the
issues in dispute, in
favour of one or other of the parties. Where practitioners neglect
their roles, it leads to the protracted
conduct of the litigation in
an ill-disciplined manner, the introduction of inadmissible evidence
and the confusion of fact and
argument, with the attendant increase
in costs and delay in its finalisation, inimical to both expedition
and economy.”
[31]
The
delivery of heads of argument is not a mere formality and has an
important role in the administration of justice. The
importance
and function of heads of argument were conveniently summarised in
S
v Ntuli
[18]
where
Marcus AJ explained:
“
Heads
of argument serve a critical purpose. They ought to articulate the
best argument available to the appellant. They ought to engage
fairly with the evidence and to advance submissions in relation
thereto. They ought to deal with the case law. Where this is not
done
and the work is left to the Judges, justice cannot be seen to be
done. Accordingly, it is essential that those who have the
privilege
of appearing in the Superior Courts do their duty scrupulously in
this regard.”
The
time frames set out in the joint rules are intended to provide the
presiding judges an adequate opportunity to consider the
arguments to
engage sensibly with counsel on the issues.
[32]
As I have
said, the set down of the matter was subject to compliance with the
joint rules which required Mr John to file his heads
of argument
timeously. His representatives failed to do so and gave
repeated undertakings to the Deputy Judge President that
it would be
done. One undertaking after another was dishonoured and
ultimately no explanation was forthcoming whilst the
true reasons for
the failure were not disclosed. In this respect, the legal
representatives on behalf of Mr John neglected
their roles in the
process and did not perform their duty scrupulously as required in
the legal profession. As a token of
our disapproval of the
conduct of the matter, notwithstanding the outcome of the main
application and the counter application,
I intend to make no order as
to costs.
[33]
In the result:
1.
The
application is dismissed.
2.
It is declared
that the words “our children” in clause 1.1 of the
written Joint Will of Patience Nothemba Geza and Mzimkhulu
Wellington
Geza, dated 3 June 2008 includes Vuyolwethu John (identity number
8[...]).
3.
The second
respondent is ordered to pay the wasted costs occasioned by the
application to postpone on 2 March 2023.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
GRIFFITHS
J:
I
agree.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicants:
Adv L Ellis instructed by BLC Attorneys, Gqeberha
For
2
nd
Respondent: Mr Z Ngqeza instructed
by Zolile Ngqeza Attorneys, Gqeberha
[1]
Botha
and Others v The Master and Others
1976 (3) SA 597 (E)
[2]
Ex
Parte Van der Spuy, NO
1966
(3) SA 169 (T)
[3]
Per
Sutton J, in
Ex
Parte Estate Stephens
1943 CPD 397
at 402, quoted with approval by Corbett J in
Audrey-Smith
v Hofmeyr NO
1973
(1) SA 655
(C) at 657G-H
[4]
Per
Faure Williamson J in
Leiman
v Ostroff and Others
1954 (4) SA 457
(W) at 461E-F. See also
Cumming
v Cumming
1945 AD 201
at 206.
[5]
35.5.1
(
Gane’s
translation)
[6]
Natal
Joint Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA)
[7]
Allgood
v Blake
(1873)
LR 8 Exch 160
at 163 (referred to with approval in
Cumming
v Cumming
1945
AD 201)
[8]
Lello
and Others v Dales NO
1971 (2) SA 330
(A) at 335D-E
[9]
Allen
and Another, NNO v Estate Bloch
and
Others
1970 (2) SA 376
(C) at 380A-E
[10]
Wills
Act, 7 of 1953
[11]
Lello,
at 335D-E
[12]
Leiman,
fn
4 at 461F
[13]
Executor
of A Neveling v Executor of P Neveling and Others
(1909) 26 SC 196
;
Ex
Parte Godden NO
[1962]
2 All SA 482
(SR);
1962 (2) SA 360
(SR);
Thom
v Worthmann, NO and Another
[1962]
4 All SA 28 (N); 1962 (4) SA 83 (N)
[14]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
1984 (3) SA 623 (A)
[15]
Paragraph
8(e) provided that in the case of all opposed motions, heads of
argument for the applicants are to be filed at least
15 days prior
to the hearing, and on behalf of the respondent, at least 10 days
before the hearing of the application.
Paragraph
15A(a) requires that parties to an opposed motion are to file a
practice note, not later than 8 days before the hearing,
setting out
various particulars listed in the joint rules.
[16]
Persadh
and Another v General Motors South Africa (Pty) Ltd
2006 (1) SA 455
(SE) at 459E-G
[17]
Venmop
275 (Pty) Ltd and Another v Cleverland Projects (Pty) Ltd
and
Another
2016 (1) SA 78
(GJ) para [7]
[18]
2003
(4) SA 258
(W) at para [16]