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[2022] ZAFSHC 13
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Coetzee and Another v Struwig and Another (1493/2021) [2022] ZAFSHC 13 (3 February 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
1493/2021
In
the matter between:
MAGDALENA
JOHANNA COETZEE
1
st
Plaintiff
(BORN
GREYLING)
GIDEON
JACOBUS GREYLING
2
nd
Plaintiff
and
OCKERT
JACOBUS STRUWIG
1
st
Defendant
(ID
NO: [….])
THE
MASTER OF THE FREE STATE HIGH COURT
2
nd
Defendant
HEARD
ON:
21 JANUARY 2022
JUDGEMENT BY:
LITHEKO, AJ
DELIVERED ON:
3
FEBRUARY 2022
INTRODUCTION
[1]
The 1
st
Defendant took an exception to the 1
st
and 2
nd
Plaintiffs’ amended particulars of claim on
the grounds that they are bad in law as they do not disclose a cause
of action.
The 1
st
and 2
nd
Plaintiffs’
action consists of claim 1 and two alternatives thereto and the
objection is directed at all these claims. In
this judgement the
excipient will be referred to as the 1
st
Defendant and the
Respondents as the Plaintiffs.
THE PLEADED FACTS
[2]
The first 7 paragraphs of the particulars of claim contain the
general allegations
that are applicable to claim 1 and alternatives
thereto and paragraphs 8, 9 and 10, which are quoted below, contain
specific allegations
pertaining to claim 1, the first and the second
alternatives thereto respectively.
[3]
In a nutshell, the general allegations are that the Plaintiffs are
the only descendants
of the late Hendrina Johanna Greyling
(hereinafter referred to as Greyling). The 1
st
Defendant,
Greyling and the late Gerhardus Francois Struwig (hereinafter
referred to as Struwig) are siblings.
[4]
On the 6
th
March 2014 Struwig executed a Will in which he
bequeathed the sum of R30 000.00 to Greyling and the remainder of his
estate to
Greyling and the 1
st
Defendant.
[5]
Greyling died on the 11
th
February 2015 and thereby
predeceased Struwig, who died on the 4
th
February 2018. In
terms of the Final Liquidation and Distribution Account, approved by
the Master who is cited as the 2
nd
Defendant, the Executor
of the estate of the late Struwig paid to the 1
st
Defendant, as the sole heir, the balance of the estate in the amount
of R4,181,433.39.
THE PLAINTIFFS’
CLAIM 1 AND ALTERNATIVES THERETO
[6]
In addition to the above background facts, the Plaintiffs’
amended particulars
of claim to which an exception is taken are
couched in the following terms:
“CLAIM 1.
8.1.
Section 2C
(2) of
the
Wills Act 57 of 1953
provides as follows,
“
If a descendant of
the testator, whether as a member of a class or otherwise, would have
been entitled to a benefit in terms of
the provisions of a will if he
had been alive at the time of the death of the testator, or had not
been disqualified from inheriting,
or had not after the testator’s
death renounce his right to receive such a benefit, the descendants
of that descendant shall,
subject to the provisions of subsection
(1),
per stirpes
be entitled to the benefit, unless the
context of the will otherwise indicates”.
8.2.
A descendant is defined in terms of the
Reform of Customary Law of
Succession and Regulation of Related Matters Act 11 of 2009
to
mean a person who is a descendant in terms of the Intestate
Succession Act. A descendant in terms of the Intestate Succession
Act, includes a descendant of a parent of the deceased.
8.3.
First Defendant and the late
Hendrina Johanna Greyling
are
brothers and sisters of the Testator and as such his descendants. So
that, as envisaged in Section 2C (2) of the Wills
Act,1953 as
Hendrina Johanna Greyling
would have been entitled to a
benefit in terms of the provisions of the Will if she had been alive
at the time of the death of
the Testator, the descendants of that
descendant (her descendants, to wit the Plaintiffs) is
per stirpes
entitled to that benefit.
8.4.
Wherefore the benefit allocated to Hendrina Johanna Greyling in terms
of clause 1.1 and 1.2. of the
will (Annexure “A”) should
have vested in the Plaintiffs and/or should have been paid out to the
Plaintiffs by the
aforesaid Executor of the Estate of the late
Gerhardus Francois Struwig.
8.5
Wherefore the combined amount of R 30 000.00 (clause 1.1 of the will)
and R 2 075 716.99
(clause 1.2 of the will, namely R 4 181
433.39 – R 30,000. 00 = R 4 151 433.99 ÷ 2 = R
2 075 716.99)
should have been allocated to the Plaintiffs
(representing Hendrina Johanna Greyling) with each of them entitled
to R 1 052
858.49 (namely, R 2 075 716.99 ÷ 2 = R
1 037 858.47 + R 15 000.00 = R 1 052 858.49).
8.6
Wherefore First Defendant was enriched by the receipt of R 2 105
716.99 at the expense of
the Plaintiffs, and which enrichment is
sine
causa
”.
FIRST ALTERNATIVE
CLAIM TO CLAIM 1
9.2.
The Second Defendant by accepting the amended First and Final LDA,
incorrectly allowed that the amount
of R 2 075 716.99 bequeathed
to the late
Hendrina Johanna Greyling
, accrued to the First
Defendant, in contradiction to the intention of the late
Gerhardus
Francois Struwig
. It was not the intention of the late
Gerhardus Francois Struwig
that only one half of his family
should benefit from his estate.
9.3.
The late
Gerhardus Francois Struwig
was always equally
involved in the lives of both the late
Hendrina Johanna Greyling
and the First Defendant, their children and grandchildren and has
been visiting the Plaintiffs on a regular basis after
Hendrina
Johanna Greyling
passed away and acted as a father figure, during
this period, to the Plaintiffs since both their parents passed away.
9.4.
From the scheme of the will of the late
Gerhardus Francois Struwig
it is evident that apart from the R30 000.00 he bequeathed to
Hendrina Johanna Greyling
, since the First Defendant was
financially better off than
Hendrina Johanna Greyling
, that
his intention was to divide the remainder of his estate between the
late
Hendrina Johanna Greyling
and the First Defendant, to
divide his estate fairly between his family. The intention of the
late
Gerhardus Francois Struwig
was that if either of his
heirs predeceased him that the predeceased heir be represented by
such heir’s children, since both
heirs had two children.
SECOND ALTERNATIVE
CLAIM TO CLAIM 1
10.2. There
is a rebuttable presumption in terms of the common law that it was
the intention of the Testator that a
predeceased heir (if such heir
was appointed, as such, as a member of a class of persons, to wit a
sibling or family of the Testator)
must be represented (at the
Testator’s death) by such heir’s children (who are alive
at the time of the devolution
of the benefits).
10.3 It
was the intention of the Testator that the late
Hendrina Johanna
Greyling
, if predeceased at the time of the Testator’s
death, must be represented by her children, namely the Plaintiffs.
THE EXCEPTION
[7]
The grounds of the 1
st
Defendant’s exception to
claim 1 of the Plaintiffs are the following:
(a)
Struwig expressly identified and nominated Greyling and the 1
st
Defendant as his specified and expressly named heirs.
(b)
At no point did Struwig nominate a class of persons as the recipients
of the inheritance.
(c)
Section 2C
(2) of the
Wills Act expressly
refers and applies to the
descendants of a testator.
(d)
The Plaintiffs fail to acknowledge the proper definition of
descendant which is restricted
to the direct biological line of the
testator, i.e. the issue of the testator.
(e)
Furthermore the nomination of an heir in the will of a testator does
not render that heir
a descendant of the testator.
(f)
The Plaintiffs further incorrectly attempt to rely upon the
definition of a descendant
as contained in the Reform of Customary
Law of Succession and Regulation of Related Matters Act 11 of 2009
which expressly only
find application in respect of the Customary Law
of Succession (whether testate or intestate) and which consequently
has no bearing
on the facts at hand as no parties to those
proceedings are subject to or practitioners of customary law.
(g)
Manifestly neither the Plaintiffs nor their mother, Greyling are the
issue or within the
direct biological line of the testator and are
accordingly not the descendants of the testator.
[8]
The grounds whereupon the first and second alternatives claim to
claim 1 are excepted
to are:
(a)
The Plaintiffs reliance on a purported rebuttable presumption in
terms of the common law
is misplaced as no such a presumption exists.
Furthermore, the Plaintiffs fail to acknowledge that there are no
indiciae
in the will to indicate that the testator intended to
substitute the issue of his sister as beneficiaries to her share. The
law
of testate succession is clear that when a bequest or inheritance
is left to more than one heir without there being any stipulation
as
to how it is to be divided among them, then upon the death of one
heir before the share vests in him, it will devolve upon his
co-legatees by
jus accrescendi
unless the testator has expressly substituted
someone else for the deceased beneficiary.
(b)
It is clear that the Plaintiffs were not, on any interpretation of
the will and on any of
the grounds upon which the Plaintiffs rely,
entitled to any inheritance in terms of the testator’s will.
(c)
In the absence of the discharge of the executor in accordance with
Section 56 of the Administration
of Estate Act, the non-joinder of
the executor of the deceased estate of the testator constitutes a
material defect in the pleadings
and a proper cause of action has not
been disclosed.
THE LEGAL POSITION
[9]
An exception must be adjudicated on the basis of the entire pleading
as it stands,
[1]
accepting that
each and every factual averment therein is true and that upon every
reasonable interpretation thereof no cause of
action is disclosed.
[2]
The particulars of claim
must contain every fact, (the
facta
probanda)
,
that is necessary for the plaintiff to prove. It is not a requirement
that the particulars of claim must contain evidence (
facta
probantia)
,
that is required to prove the fact.
[3]
If all the facts required to prove the claim are pleaded in the
particulars of claim, a cause of action is disclosed.
An objection of
non-joinder or
non
-
locus
standi in judicio
is usually taken by way of special plea, but if the fact of
non-joinder or
non
-
locus
standi in judicio
appears from the summons, the defendant is entitled to except to the
summons on the grounds that no cause of action is disclosed.
[4]
The executor or executrix
is entitled to obtain his or her discharge from the Master upon
satisfactory completion
of the liquidation and distribution of a deceased estate and upon
being discharged, no
legal proceedings shall be instituted against him or her in respect
of any claim against the
deceased estate or any benefit out of that estate.
[5]
APPLICATION OF LAW TO
THE FACTS
[10] A
perusal of the grounds upon which the exception is founded has
revealed that, although they are 12, they
are inextricably linked and
they essentially raise only two issues, namely (a) lack of
locus
standi
on the part of the Plaintiffs and (b) non-joinder of the
Executor.
[11]
The 1
st
Defendant has a duty to show that upon every
interpretation which the particulars of claim of the Plaintiffs and
the will of Struwig
can reasonably bear, no cause of action is
disclosed. Unless the 1
st
Defendant succeeds in this
regard, the exception cannot be upheld.
[12]
Mr. Reinders, on behalf of the 1
st
Defendant argued, with reference to claim 1, that
Section 2C
(2) of
the
Wills Act which
is relied upon by the Plaintiffs does not find
application in this matter because Greyling was not a descendant of
Struwig. The
corollary of this is that the Plaintiffs, who are the
descendants of Greyling cannot be regarded as the descendants of
Struwig.
In this regard, Mr Coetzee, for the Plaintiffs urged me to
ascribe to the word “descendant” a meaning given to it in
the Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009. This act defines a descendant as a
person who
is a descendant in terms of the Intestate Succession Act
[6]
.
The Intestate Succession Act defines a descendant, amongst others, as
including a descendant of a parent of the deceased.
[13]
The difficulties with defining a descendant in the manner proposed by
Mr. Coetzee are, in my view,
the following:
(a)
that definition originates from the Intestate Succession Act, which
is applicable to intestate
succession and not testate succession. It
is conceivable that a word such as descendant would be given a
meaning in the context
of intestate succession which is wider than
its ordinary meaning, which approach would not be justifiable in the
context of testate
succession where a testator is free to mention,
and in the instant case has mentioned his preferred heirs in clear
terms. There
is also no principle of interpretation that requires a
court to interpret one piece of legislation with reference to the
other.
A special meaning ascribed to a word or phrase in a statute
ordinarily applies to that statute alone.
[7]
(b)
there is nothing in the will of Struwig that suggests that he
intended the bequest to devolve
to the children of his heirs in the
event of them predeceasing him.
(c)
it will be repugnant to the
jus
accrescendi
in terms whereof the share of a co-legatee who dies before such
a share vests in him or her, devolves upon his or her co-legatees
who
are alive at the time of the death of the testator unless the
testator expressly substitutes the deceased beneficiary with
someone
else.
[8]
(d)
Mr. Coetzee has, in his heads of argument, referred to the Penguin
Concise English Dictionary
(2001) which defines a “descendant”
as, “somebody or something descended or deriving from somebody
or something
else” and The Oxford Advanced Learner’s
Dictionary (1989) which defines “descendant” as a person
descended
from another”. This is the ordinary grammatical
meaning which does not support the argument that the Plaintiffs are
descendants
of Struwig.
[14]
It is trite that courts must properly contextualise statutory
provisions when ascribing meaning to
words used therein.
[9]
In the matter of Saidi (supra), at paragraph 36 it is stated that:
“
This Court has
noted that on numerous occasions that text is not everything. Unless
there is no other tenable meaning, words in
a statute are not given
their ordinary grammatical meaning if, to do so, would lead to
absurdity”.
In the context of this
matter, the word descendant must be defined with reference to the
will of the testator. In other words, in
order to define it to mean
that the Plaintiffs are the descendants of Struwig, this construction
must be found to have been the
intention of Struwig at the time of
the execution of the will. I do not find anything in the will of
Struwig which supports the
argument that Struwig intended to benefit
his family, i.e. 1
st
Defendant and his issue together with
Greyling and her issue, as opposed to the only beneficiaries that he
specifically mentioned
in his will, namely Greyling and the 1
st
Defendant.
[15]
The rebuttable presumption that Mr Coetzee referred to, if it is
indeed part of South African Law,
also seems to be inconsistent with
the
jus
accrescendi
which has been applied by the then apex Court in cases such as Lello
(
supra
).
On the other hand, the said presumption has never been applied in any
judgement but only stated in the book
[10]
as what I consider to be an expression of an opinion.
[16]
The other issue that Mr. Reinders raised is that the Executor of the
estate ought to have been joined
as he or she has not been discharged
in terms of Section 56(1) of the Administration of Estate Act. Mr
Coetzee argues that this
is an attempt on the part of the 1
st
Defendant to introduce evidence. An Executor retains the power to sue
or be sued in his representative capacity until he has been
discharged.
[11]
If an executor
pays the heir or legatees more than they are entitled to, there is
unjustified enrichment so the Executor may recover
the excess from
them by means of
condictio
indebiti
.
The issue whether or not the Executor has been discharged is
important. The reason for this is that if he or she has not
been
discharged, the claim for unjustified enrichment is a matter to be
dealt with by the Executor. If he or she has been discharged,
then
the Plaintiff must show that they are the beneficiaries of the late
estate of Struwig in order to be clothed with
locus
standi
to sue for unjustified enrichment.
CONCLUSION
[17]
Having considered the allegations contained in the amended
particulars of claim of the Plaintiffs and
the grounds whereupon the
exception is founded, and having considered the relevant legal
principles, I am satisfied that the 1
st
Defendant has
shown that on every interpretation of the particulars of claim of the
Plaintiffs and the will of Struwig, no cause
of action is disclosed.
The Plaintiffs do not make any allegations that show that they are
the descendants of the testator and
for that reason their particulars
of claim lack the averments which are necessary to sustain an action.
The 1
st
Defendant’s exception must therefore
succeed.
THE ORDER
[18]
I consequently make the following order:
1.
The exception to the Plaintiffs’ particulars of claim is
upheld.
2.
The Plaintiffs particulars of claim are struck out.
3.
The Plaintiffs are given leave to amend their particulars of claim,
if so advised,
within 20 days of this order.
4.
In the event of the Plaintiffs’ failure to amend their
particulars of claim
within the period mentioned in 3, the 1
st
Defendant is granted leave to enrol the matter for dismissal of the
Plaintiffs’ claim.
5.
The Plaintiffs are ordered to pay the costs of the exception.
M. S. LITHEKO, AJ
For
the Plaintiffs:
Mr.
R. Coetzee
Instructed
by:
Steenkamp
& Jansen Inc.
Bloemfontein
For
the Defendants:
Adv.
S. J. Reinders
Instructed
by:
Van
Wyk & Preller Inc.
Bloemfontein
/roosthuizen
[1]
Salzmann
v Holmes
1914 AD 152
at 156.
[2]
Stewart
and Another v Botha and Another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) at paragraph
[4]
.
[3]
Acsendis
Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others
2020 (1) SA 327
(CC) at paragraph 50.
[4]
Edwards
v Woodnutt, NO 1968 (4) SA 184 (R).
[5]
Section
56
of the
Administration of Estates Act 66 of 1965
, as amended.
[6]
Act
81 of 1987.
[7]
Independent
Institute of Education (Pty) Ltd v Kwazulu-Natal Law Society and
Others
2020 (2) SA 325
(CC) at
paragraph
14 and 18.
[8]
Lello
and Others v Dales, N.O 1971 (2) SA 330 (A.D)
[9]
Saidi
v Minister of Home Affairs 2018 (4) SA 333 (CC)
[10]
Van
der Merwe, Rowland, Cronje: Die Suid-Afrikaanse Erfreg , 6
th
Edition,
1990 at 244.
[11]
Section 56 of the Estates Act. See also:
Wille’s
Principles of South African Law, 9
th
Edition
at 1060.