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[2022] ZAFSHC 108
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Noome and Others v Botha N.O. and Others (4405/2021) [2022] ZAFSHC 108 (23 May 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
In the HIGH COURT
OF South Africa
FREE STATE
PROVINCIAL DIVISION
Reportable: YES/NO
Of interest to other
Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No.: 4405/2021
In
the matter between:
CATHARINA
ANDRISINA
NOOME
First Applicant
CHRISTINE
DE
VILLIERS
Second Applicant
CHRISTINE
DE
VILLIERS
Third Applicant
(In
her capacity as the guardian of her minor children
Petrus
Jacobus de Villiers, Stefanus Johannes de Villiers
and
Luné de Villiers)
and
LUCIA
JACOBA BOTHA N.O.
First Respondent
FREDERICK
JOHANNES JACOBUS PRETORIUS N.O.
Second
Respondent
(The
first and second respondents in their capacities as
duly
authorised trustees of the Petrus Jacobus Botha
Testamentary
Trust, MT no.:9575/07)
LUCIA
JACOBA BOTHA
Third Respondent
DANIëL
JACOBUS BOTHA
Fourth Respondent
THOMAS
DANNHAUSER BOTHA
Fifth Respondent
THOMAS
DANNHAUSER BOTHA
Sixth Respondent
(In
his capacity as the guardian of his minor children
Petrus
Jacobus Botha, Ilze Botha and Lucia Botha)
THE
MASTER OF THE HIGH COURT, FREE STATE
Seventh Respondent
THE
REGISTRAR OF DEEDS, FREE STATE PROVINCE
Eighth
Respondent
Coram:
Opperman, J
Date
of hearing:
24
March
2022
Judgment
Delivered:
23
May
2022
Reasons
for Judgment:
The reasons for
judgment were handed down electronically by circulation to the
parties’ legal representatives by email and
release to SAFLII
on 23 May 2022. The date and time for hand-down is deemed to be 23
May 2022 at 15h00.
Summary:
Interpretation of will - sale of immovable
property specifically allocated to beneficiary of testamentary trust
and descendants
- duty of trustees
JUDGMENT
INTRODUCTION
[1]
It has been lamented as far back as 400 years ago that the
interpretation of wills
fell into a despair of jurisprudence (
excedit
juris prudentum artem
).
The explanation therefor may be
that
“no will has a twin”.
[1]
[2]
The above nonetheless; the most valuable compass in the
interpretation of wills is:
“… if a will be plain, then
to collect the meaning of the testator out of the words of the
will…”.
[2]
[3]
The construction of wills is often a process without plan or rule.
[3]
The tragedy is the bedlam and hatred caused in cases as in this
application, and between a mother and her children, when a will
was
drafted in a manner that might cause confusion.
[4]
The confusion often lies in the eye of the beholder as in this case.
The will in issue
might not have been unclear if the correct rules of
law were applied.
[5]
The golden rule of the interpretation of a will is to ascertain the
wishes of the
testator from the language of the will as a whole. The
will of the testator may not always amount to a sense of fairness for
all.
This fact does not allow for the provisions of a will to be
unlawfully distorted.
[4]
In
Ex
parte Jewish Colonial Trust Ltd; In re Estate Nathan
1967
(4) SA 397
(N) at 408E it was correctly ruled that beneficiaries of a
will must be content to take what they were given:
The Court cannot make, or
re-make a testator's will for him; it cannot vary the will he has
made. It cannot change the devolution
of his estate as he has
directed it, nor add to or subtract from the benefit he has conferred
upon each of the beneficiaries. They
must be content to take what
they are given, when and on the terms on which it is given. The Court
will interpret the will in order
to ascertain who are the
beneficiaries and the extent to which each benefit and in
interpreting it will give consideration to what
may properly be
implied into the will. The rights of the beneficiaries are determined
by the will properly interpreted.
[6]
The totality of the instructions in the will as is stated in the
words is vital for
effective interpretation and clarification. Again,
King v De Jager
:
[34]
The point of departure when interpreting wills is 'to ascertain the
wishes
of the testator from the language used in the will'. Courts
are obliged to give effect to the wishes of the testator unless they
are prevented by some law from doing so. The 'golden rule' for the
interpretation of wills and this inherent limitation is famously
described as follows in Robertson:
'The
golden rule for the interpretation of testaments is to ascertain the
wishes of the testator from the language used. And when
these wishes
are ascertained, the Court is bound to give effect to them, unless we
are prevented by some rule or law from doing
so.'
[5]
[7]
The application turns on the provisions of a joint will (“the
will”),
executed on 25 July 2007 by one P.J. Botha and his
wife, L.J. Botha (“First and third respondent” or “the
mother”).
P.J. Botha (“the deceased”) passed away
on 16 August 2007. The will commanded a trust
mortis causa
.
[8]
A trust is not a legal persona and is a legal institution
sui
generis.
Trustees must conduct themselves with the utmost integrity. The
trustees do not become the owners of any assets or property in
trust
to deal with on a whim.
[6]
[9]
They are mere caretakers in service of, and subservient to the trust
instrument; the
will. Section 9 of the Trust Property Control Act No.
57 of 1988 is the law:
9.
Care, diligence and skill required of trustee. —
(1)
A trustee shall in the performance of his duties and the exercise of
his powers
act with the care, diligence and skill which can
reasonably be expected of a person who manages the affairs of
another.
(2)
Any provision contained in a trust instrument shall be void in so far
as it would
have the effect of exempting a trustee from or
indemnifying him against liability for breach of trust where he fails
to show the
degree of care, diligence and skill as required in
subsection (1).
[10]
Irregularities in connection to the administration of a trust
must
be reported to the Master of the High Court.
[11]
Trustees must be removed from office if they fail to perform any duty
imposed upon them satisfactorily:
20. Removal
of trustee. —
(1) A
trustee may, on the application of the Master or any person having an
interest in the trust property, at
any time be removed from his
office by the court if the court is satisfied that such removal will
be in the interests of the trust
and its beneficiaries.
(2) A
trustee may at any time be removed from his office by the Master—
(e)
if he fails to perform satisfactorily any duty imposed upon him by or
under this Act
or to comply with any lawful request of the Master.
[12]
Their duty is due to all the beneficiaries and equally so
. In
Griessel NO and others v De Kock and another
2019 (5) SA 396
(SCA) the Supreme Court of Appeals stated that:
[19]
The role of a trustee in administering a trust calls for
the exercise
of a fiduciary duty owed to all the beneficiaries of a trust,
irrespective of whether they have vested rights or are
contingent
beneficiaries whose rights to the trust income or capital will only
vest on the happening of some uncertain future event.
While
discrimination on the basis of need may, under certain circumstances,
be justified by the needs of a particular beneficiary,
the trustees
did not advance 'need' as the reason for treating the first
respondent less favourably. It is clear from the averments
made in
the affidavits and the tenor of the attorneys' correspondence that he
was regarded as obstructive and contrarian. That
may be so, but that
does not suffice as justification for treating him less favourably.
This therefore means that the trustees
unfairly discriminated against
him. It follows that the court
a quo
was correct in
reinstating his right to visit the farm on a rotational basis.
THE
RELIEF
[13]
Succinctly the applicants seek,
inter
alia,
the
following relief against the conduct of the first, second, third and
fourth respondents:
[7]
8.1
That the first and second respondents, in their capacities
as duly
authorised trustees of the trust, be interdicted from transferring
the farm Vijfhoek, the property of the trust, to the
fourth
respondent;
8.2
That the agreement of sale concluded between the first and
second
respondents, as sellers, and fourth respondent, as purchaser, in
respect of the farm Vijfhoek be set aside and/or declared
invalid;
8.3
That it be declared that the first and second respondents are,
in
their capacities as trustees of the trust, not entitled to dispose of
or sell or alienate or transfer the farm Vijfhoek as well
as the
other farms of the trust, during the life of the third respondent and
before the termination of the trust in accordance
with the provisions
of the will;
8.4
That the first and second respondents be interdicted from disposing
of or selling or alienating or transferring the farm Vijfhoek and the
other farms of the trust, during the life of the third respondent
and
before the termination of the trust in accordance with the provisions
of the will; and
8.5
That the first and second respondent be ordered to pay the
costs in
respect of the main application in terms of Part B of the notice of
motion
de bonis propriis
together with the third and fourth
respondent, jointly and severally, the one to pay the other to be
absolved.
THE
PARTIES
[14]
The deceased was an affluent farmer who conducted a mixed farming
operation consisting of crop
farming, stock farming and game farming
shortly before his death. The deceased had immovable property in the
form of farm implements,
vehicles, stock and game at the time of his
passing.
[15]
He resided with the third respondent on the farm Vijfhoek. Shortly
before his death the deceased
and the third respondent moved to a
R[....]2 village where the third respondent still resides.
[16]
The first applicant is a major female housewife residing at the farm
Aurora, district Warden,
Free State Province. She and her descendants
are capital and income beneficiaries after the death of the third
respondent. She
will become a trustee of the trust after the death of
the third respondent.
[17]
The second applicant is a major female housewife residing at 2
General de la Rey Street, Elandia,
Kroonstad, Free State Province.
She and her descendants are capital and income beneficiaries after
the death of the third respondent.
She was also names executrix in
the absence of the testators. She will become a trustee of the trust
after the death of the third
respondent.
[18]
The third applicant is the second respondent in her representative
capacity as the guardian of
her minor children Petrus Jacobus de
Villiers, Stefanus Johannes de Villiers and Luné de Villiers.
[19]
The first respondent is Lucia Jacoba Botha N.O., a major female
residing at Unit [....],
R[....]1 R[....]2 Village,
P[....] v[....] G[....]Street, Bethlehem, Free State, in her capacity
as duly authorised
trustee of the trust since its creation. In terms
of the trust instrument the first respondent was to be the only
trustee of the
trust. The Master of the High Court deemed it
appropriate to appoint a second trustee.
[20]
The second respondent is Frederick Johannes Jacobus Pretorius N.O.
with his business address
in Bethlehem. He litigates in his capacity
as trustee of the trust. He was only appointed as trustee on 14
September 2021 by the
Master of the High Court. One Mr. Morrison
(“Morrison”), that was appointed on 8 September 2008
resigned amid the conflict
within the family over the farm Vijfhoek
around 6 August 2021.
[8]
He was
subsequently replaced by Frederick Johannes Jacobus Pretorius; the
second respondent.
[21]
The fourth respondent is Daniël Jacobus Botha, a major farmer
residing at the farm Vijfhoek
in the district of Lindley, Free State
Province. The fourth respondent did not inherit equally to his three
other siblings. The
only right he acquired from the will is that the
farm Nil Desperandum shall go to his descendants (with exclusion of
adopted children)
already born and alive at the time of the fourth
respondent’s death and in the absence of such descendants to
the descendants
of the fifth respondent, subject to the use and
enjoyment of the farm by the fourth respondent for the duration of
his lifetime.
[22]
The fifth respondent is Thomas Dannhauser Botha, a major male farmer
residing at the farm Nova
Scotia, Lindley. He and his descendants are
capital and income beneficiaries after the death of the third
respondent. He will become
a trustee of the trust after the death of
the third respondent.
[23]
The sixth respondent is the fifth respondent in his capacity as
guardian of his minor children
Petrus Jacobus Botha, Ilze Botha and
Lucia Jacoba Botha.
[24]
Notwithstanding what seemed to be a vehemently opposed motion with
three applicants and eight
respondents, very few of the parties
declared themselves to be part of the dispute. Only the two trustees,
in the end, opposed
the application and their legal representatives
have now withdrawn.
[25]
The third and fourth respondents that caused the litigation opposed
the costs orders applied
for against them and abide by the court’s
decision regarding the remainder of the relief the applicants
seek.
[9]
[26]
The fifth and sixth respondents do not oppose the application.
[27]
The sixth respondent is the Master of the High Court. In a recent
report dated 28 January 2022,
it was noted that they will abide by
the ruling of the court but opined that the trustees have been given
the powers to sell the
property in issue. BUT, in the same breath the
Master states unequivocally in contradiction to their earlier
submission that:
4.
Notwithstanding
the above I also wish to refer the Court to clause 3.2.9 of the will
in contrast to clause 3.2.2. above. This brings
a matter of
interpretation between these clauses and the Court is in a better
position to give direction in this regard.
[10]
[28]
The eighth respondent, the Registrar of Deeds, Free State Province,
does not oppose the application
and filed a notice to abide.
[29]
On the 14
th
of October 2021 this court appointed Advocate
C.D. Pienaar as curator
ad litem
on behalf of the minor
contingent beneficiaries and the unborn contingent beneficiaries
nominated in the will.
[30]
Various of the minor contingent beneficiaries were represented in the
proceedings by their guardians;
the third applicant, in her capacity
as guardian, represented her minor children. The sixth respondent
represented his minor children
in the same manner. One of the
children of the third applicant, HB De Villiers, has reach majority
in age and it was noted that
he will abide by the ruling of the
court.
THE
WILL
[31]
The judgment will have to depict the will in its entirety.
[11]
As indicated; the significance and gist of the will lie in the
document as a whole.
[32]
The trust was created in terms of clause 3.2 of the will. The will
provides as follows:
1.
The third respondent is until her death the
only income beneficiary of the trust and is entitled to the nett
income of the trust.
2.
At the death of the third respondent, the
first applicant, second applicant and the fifth respondent become the
income beneficiaries
of the trust for a period of 1 year, which
income is to be appropriated for the maintenance and education of the
first applicant,
the second applicant and the fifth respondent and
their descendants.
It is imperative to
note that the fourth respondent was expressly excluded from this
benefit
.
3.
After the lapse of a period of 1 year from
the death of the third respondent, the trustees are authorised to
appropriate the income
and to extent, if necessary, any capital of
the trust for the maintenance and education of the first applicant,
the second applicant
and the fifth respondent and their descendants
should the trustees in their discretion decide to continue with the
trust.
4.
After expiry of a period of 1 year after
the death of the third respondent, the trustees of the trust may
terminate the trust and
transfer the trust assets to the
beneficiaries, including any unappropriated income and as follows:
4.1
The farm Rooikraal, Lindley to the second applicant;
4.2
The farm Vijfhoek, Lindley to the first applicant;
4.3
The farms Nova Scotia and Beginsel, Lindley to the fifth respondent;
4.4
The farm Nil Desperandum to the descendants of the fourth respondent
already
born and alive at the time of the fourth respondent’s
death, in the absence of such descendants to the descendants of the
fifth respondent subject to the use and enjoyment thereof by the
fourth respondent for the duration of his life;
4.5
The farm Olivia to the deceased’s grandchildren namely, Nardus
de
Villiers, Pieter de Villiers and Jaco Botha in equal shares; and
4.6
The remainder of the trust assets to go to the first applicant, the
second
applicant and the fifth respondent.
5.
In terms of clause 5 of the will it is
further specifically provided that in the event that a child who is a
beneficiary in terms
of the will dies before the deceased or the
third respondent and/or before the termination of the trust, then the
interest of such
child vests in the descendants of the other children
of the deceased and the third respondent.
6.
In terms of the will the descendants of the
first applicant, the second applicant and the fifth respondent are
contingent income
and capital beneficiaries of the trust. In
addition, the descendants of the fourth respondent are also
contingent capital beneficiaries.
[33]
The ruckus in the case erupted with the sale of the farm Vijfhoek by
the trust that was specifically
and unequivocally bequeathed to the
first applicant and her descendants.
[34]
The trustees elected to sell her farm out of six farms and other
movable assets available and
bequeathed to other beneficiaries; to
the fourth respondent. The fourth respondent is also a beneficiary in
the trust.
[35]
The sale occurred without any notice to the sole and specific heir
and beneficiary of the proprietorship
of the immovable property.
Neither the third or fourth respondent, nor the trustees had any
claim to this property in terms of
the trust instrument.
[36]
They effectively disinherited the first applicant and the contingent
beneficiaries of the farm
in stark contrast to the explicit terms and
intent of the will.
[37]
The farm was sold to the fourth respondent and for the solitary
benefit of the third and fourth
respondents.
The unequal treatment
of the one beneficiary in itself is so glaringly illegal that it, on
this basis alone, justifies the granting
of the application.
[38]
The will
specifically excluded the fourth respondent from ever
possessing a farm or receiving any other tangible benefit
. The
only right he acquired from the will is that the farm Nil Desperandum
shall go to his descendants (with exclusion of adopted
children)
already born and alive at the time of the fourth respondent’s
death and in the absence of such descendants the
farm will go to the
descendants of the fifth respondent,
subject to the use and
enjoyment of the farm by the fourth respondent for the duration of
his lifetime
.
[39]
The testator clearly had his reasons for treating his children
differently. The facts show that
he and his wife disinherited one of
their other children completely.
[12]
These were the circumstances and the wishes of the testator and the
third respondent at the time of the drafting of the will.
[40]
The will of the testator was plainly for the farms not to fall
into the hands of third parties outside of the Botha family and the
only entities that had the authority to sell the farms were the heirs
of the specific farms; not the trustees.
The beneficiaries may
also not claim what is not theirs to claim.
1.
NOTE
:
If the afore mentioned heirs
[13]
decided to sell their farms, they are not permitted to so sell the
farms to a third person before they had offered the farms for
sale to
their brothers
THOMAS
DANNHAUSER BOTHA
and
DANIëL
JACOBUS BOTHA
and after they had been informed in writing that the brothers are not
interested in acquiring the farms at market related prices
or as
valuated by the Land Bank of South Africa. (Clause 3.2.9.2)
The above is evidence of
the fact that clause 3.2.2 was never intended for the farms
specifically bequeathed to be sold and authority
was not granted in
this clause to
nolens volens
: “…rent, sell or
liquidate the assets.”
2.
All the property kept in trust to be
inherited was ruled by the trust
instrument to be out of the realm and excluded from the legal
consequences of marriages in community
of property, marriages entered
into with the accrual system applicable and the marital control of
husbands of the female heirs.
(Clause 6.3)
3.
If the immediate successors are not
available to inherit the farms,
the beneficiaries in succession will. (Clause 5.)
4.
By implication, any beneficiaries that
lay claim to benefits not
stated in the will, shall be disinherited forthwith. (Clause 3.2.9.7)
I declare herewith
specifically that should any of the beneficiaries claim against the
estate for monies owed by myself to him/her,
will said beneficiary
summarily be disinherited and have no right to claim any benefits in
terms of this will.
(Ek bepaal hiermee
uitdruklik dat sou enige begunstigdes ‘n eis teen my boedel
indien vir geld deur my aan hom/haar geskuld,
word sodanige
begunstigde summier onterf en sal hy/sy nie geregtig wees op enige
voordele kragtens hierdie testament nie.)
[41]
The deceased and the third respondent were married out of community
of property.
[14]
The farm
Vijfhoek was the exclusive property of the testator.
The
will did not permit the third respondent from any benefit except for
the following:
1.
Residency for life at “ R[....]1 Stigting”,
Bethlehem;
2.
all game on the farm Nova Scotia;
3.
all household appliances and furniture;
4.
a cash inheritance of one million rands; and
5.
the net income from the trust for life. (Clauses 3, 3.1, 3.1.1,
3.1.2, 3.1.3,
3.1.4 and 3.2.5) The evidence is that the farms at the
time of the execution of the will in 2007 had a potential yearly
income
of about R275 060.00. The deceased and the third respondent
realised this at the time of the drafting of the will and both was
undoubtedly in agreement that the income would be enough to cover the
financial needs of the third respondent. The fact that her
economic
circumstances changed does not allow for the terms of the will to be
changed.
[42]
The rest of the property in trust is bequeathed as to become the
property of the other beneficiaries
. The third respondent has no
right or claim to it; specifically, not to alienate it to boost her
income and disinherit the rightful
heirs to the benefit of herself
and one other heir. It can never be inferred from the will that the
testator intended for the third
respondent to have absolute power
over all the assets in the trust. The absurd impact would be that
she, in her lifetime, may commandeer,
usurp and hijack all the assets
and in effect disinherit the heirs in toto. This brings me to the
impugned clause that caused the
litigation.
[43]
In stark contrast with the Law of Succession the first and second
respondents are stuck on one
clause of many to promote their view.
This is clause 3.2.2.
[44]
The core of the application involves the interpretation of the
provisions of the will created
in terms of clauses 3.2 to 3.2.9.7.
The opposition of the merits of the application is founded upon the
contention that clause
3.2.2 of the will empowers the trustees to
sell and alienate the farm Vijfhoek as well as the other farms of the
trust.
3.2.2
To, in the interest of the trust, in his
discretion, rent, sell or liquidate the assets, or to rent or buy any
moveable or immovable
assets.
(Om in belang van die
trust, in sy diskressie, die bates te verhuur, te verkoop of tegelde
te maak, of om enige roerende en onroerende
eiendom te huur of aan te
koop.)
[45]
It is imperative to note that the will in paragraph 3.2.2
draws a
clear distinction in its wording between “the assets”
that are being permitted to be rented out, sold or liquidated
and
“immovable property”
. It does not refer to immovable
property that are allowed to be alienated. The only mention to
immovable property is when the trust
is permitted to rent or buy
such. There is never any mention that immovable property may be
disposed of, sold, alienated or transferred.
Specifically, not the
farm Vijfhoek and the other farms in the trust, and specifically
bequeathed.
[46]
Clearly, according to the wording of the clause, the trust instrument
only permits that immovable
property be acquired or rented. If the
word “assets” were meant to include immovable property or
immovable property
specifically bequeathed, the: “
or
to rent or buy any moveable or immovable assets (“
of
om enige roerende en onroerende eiendom te huur of aan te koop”)
would not have been added in the sentence of the clause.
THE FACTUAL HISTORY
THAT CAUSED THE LITIGATION
[47]
The solution in law is not as complicated as are the emotions in the
family feud. As was shown,
the will is clear. The factual background
of the case confirms that the first, second, third and fourth
respondents had, in the
least, a suspicion that they may not sell the
farm and specifically in the manner they went about it.
[48]
The case is one of emotional and unrelenting family feuds. As
indicated; the first applicant
and fourth respondent are siblings;
the third respondent, their mother and also a trustee of the trust.
The family seems to be
divided in two feuding factions: the mother
and the fourth respondent on the one hand; and the two applicants and
the fifth respondent
on the other.
[49]
The feuding and the specious conduct of the fourth respondent during
the litigation caused the
attorneys of the first and second
respondents to withdraw from record after the matter was heard, but
before judgement and on 21
April 2022.
[50]
He, without the knowledge of his legal representatives and the other
parties, caused a letter
to be send to my office wherein he divulged
facts that did not form part of the court papers. On 12 April 2022
all counsel were
invited to my chambers and copies of the document
were made available to them. It was decided that the matter will be
adjudicated
as per the arguments and papers that were placed before
me on the date of the hearing; 24 March 2022. The information,
underhandedly
so, placed before the presiding officer will be ignored
as
null and void
.
[51]
On 18 May 2022 it came to the notice of this court that the first and
second respondents are
in contempt of the court order dated 11
November 2022 to pay the costs of the curator
ad litem
and
that a Warrant of Execution against some movable property of the
trust was issued by the Registrar of this court. The papers
were
served and filled on record.
[52]
To reiterate; disconcertingly, the very two people that caused the
litigation, that claim that
the farm may be sold, that claim that the
farm bequeathed to one specific beneficiary of the trust may be sold
to another and thereby
effectively disinherits her; now only oppose
the costs order sought against them and abide by the decision of the
court regarding
the remainder of the relief which the applicants
seek. They want for the trust to bear the costs.
[53]
The events that caused the litigation also give perspective to the
final finding of this court.
[54]
Vital is the fact that this is a repeat of a previous identical
situation whereby the second,
third and fourth respondents were
forewarned that their actions might not be in accordance with the
law.
[55]
The conflict consisted,
inter alia
, as result of neglect of
the farms that were to be managed by the trust and substantial
interest free loans granted to the one
brother, the fourth respondent
(outstanding amount R660 905.00: 28 February 2018), and the mother
(outstanding amount R875 077.00:
28 February 2018).
[56]
A major event occurred in April 2013 when the ownership of one of the
farms, Vijfhoek was transferred
to the fourth respondent without the
knowledge of the other siblings and beneficiaries of the trust. By
the time the information
came to the knowledge of the applicants, the
farm was already transferred and registered on Title Deed T [....]
[57]
The first applicant obtained legal aid and Mr. Strating, her present
attorney, raised the issue
with the trustees on the basis that the
trustees were not, in terms of the provisions of the trust
instrument, entitled to sell
Vijfhoek and to transfer the ownership
of said farm to the fourth respondent. As a result, the farm was
swiftly re-transferred
by the fourth respondent to the trust on 13
January 2014. Title Deed T [....] is prove thereof.
[58]
To add fuel to the fire a mortgage bond was registered for the full
amount of the purchase price
for which the trust sold the farm to the
fourth respondent and it appears from the records of the eighth
respondent that the mortgage
bond (B5303/2012) was registered in
favour of the trust as represented by the mother and Morrison. It
seems that the fourth respondent
effectively obtained ownership of
the farm without making any payment and the trust had to pay the
mortgage.
[15]
[59]
On 16 August 2019 a letter was addressed to the trust recording the
concerns of the applicants
regarding the maintenance of the trust’s
assets and also the fact that the trustees failed to ensure that
rental income is
generated from the trust’s farms.
Communication between the parties ensued but the Covid pandemic
delayed the matter.
[60]
In August 2021 one Mr. van Aardt, attorney for Morrison and the
mother, informed the applicants
that an Advocate van Vuuren, whose
instructing attorneys are not known, acted on behalf of the mother.
Morrison was requested by
the mother to sign sale agreements
regarding the property, Vijfhoek, but he had refused to do so because
he wanted to consider
the proposed sale, the contract and the legal
position of the trust. Morrison resigned immediately hereafter. Mr.
van Aardt followed
on his heels and resigned as attorney of record on
behalf of the mother and Morrison. This was announced in a letter
dated 20 August
2021.
[16]
[61]
The applicants again took immediate action and addressed a letter to
the mother in regard to
the alleged sale. She, the mother, refused to
acknowledge receipt. Advocate van Vuuren accused the applicants and
their legal representative
of harassment of the mother and confirmed
that she intent to dispose of the property. Advocate van Vuuren was
requested to suspend
the sale of the property until the dispute was
resolved. His reply was that the mother needed the income from the
sale to provide
for her needs and that she had a claim against the
trust for maintenance in terms of the provisions of the Maintenance
for Surviving
Spouses Act, 27 of 1990. They refused any undertaking
to put the disposal of the property in abeyance.
[62]
The transfer started and Phatshoane Henney Incorporated was
instructed to conclude the process.
On 14 September 2021 the attorney
of the applicant’s initial correspondent in Bloemfontein, Mr.
Volschenk, liaised with the
Master of the High Court to ascertain
whether the second respondent was now appointed as trustee in the
place of Morrison. The
appointment was confirmed and Mr. Volschenk
had to withdraw due to a conflict of interest in that he was the
correspondent of the
applicants in Bloemfontein and was now
instructed to do the transfer of the farm Vijfhoek by the trust to
the fourth respondent.
[63]
Phatshoane Henney represented by one Ms. Van Zyl was informed by Mr.
Strating (Symington &
de Kok Attorneys) that the trust already
sold the farm to the fourth respondent and that in terms of the
provisions of the joint
will the trust is not allowed to sell the
farm. They insisted on an undertaking that they will not proceed with
the transfer of
the property pending the finalisation of the
application awaiting in the High Court. It was recorded that if the
undertaking is
not provided an urgent interdict is unavoidable and
costs
de bonis propriis
will be requested. Symington & De
Kok provided the background and the fact that a previous
controversial transfer occurred
to said attorneys.
[64]
On 20 September 2021 Advocate van Vuuren contacted Mr. Strating
telephonically and again stated
in no uncertain terms that the
transfer will not be suspended. Advocate van Vuuren is a friend of
the third respondent and parent
of the fiancée of the fourth
respondent and seems to have a serious conflict of interests.
Litigation erupted and the applicants
came to this court on an urgent
basis to interdict the sale. As indicated; the sale was, lo and
behold, again to the fourth respondent.
THE
INTERIM LITIGATION
[65]
On 14 October 2021 Daffue, J issued the following order:
1.
The Uniform Rules relating to service and
process are dispensed with and it is directed that Part A of this
notice of motion be
heard on an urgent basis in terms of the
provisions of Uniform Rule 6(12).
2.
Advocate Christiaan Diedericks Pienaar is
appointed as curator-
ad-litem
on
behalf of the minor contingent beneficiaries and the unborn
contingent beneficiaries in terms of the will (“the will”)
of the late Petrus Jacobus Botha, a copy of which is annexed as
annexure “FA2”.
3.
A rule
nisi
is
issued in terms whereof the respondents are called upon to show
cause, at 9h30 on 11 November 2021, why:
3.1
The first and second respondents should not
be interdicted from transferring the ownership of the farm Vijfhoek
no. 164, measuring
384.8512 ha, situated in the district Lindley and
held by the Testamentary Trust, MT no: 9575/07 (“the trust”)
in terms
of the Title Deed no. T [....] , to the fourth
respondent pending the final adjudication of the rule
nisi
as well as the final adjudication
of the main application in terms of Part B of this notice of motion;
3.2
The first and second respondent should not
be ordered to pay the costs of the application for the issuing of the
rule
nisi
and
the granting of the interim relief pending the final adjudication of
the application for the issuing of the rule
nisi,
de bonis propriis
together with the
third and fourth respondents, jointly and severally, the one to pay
the other to be absolved;
3.3
Any of the fifth to eight respondents who
oppose this application for the issuing of the rule
nisi
and consequent interim relief, should
not be ordered to pay costs of the application for the issuing of the
rule
nisi
and
consequent interim relief, jointly and severally, with the first,
second, third and fourth respondents; the one to pay the other
to be
absolved; and
3.4
The costs occasioned as result of the
appointment of the curator-
ad-litem
should not be paid out of the trust fund.
4.
The relief in paragraph 3.1
supra
shall serve as interim interdict with immediate effect pending the
final adjudication of the rule
nisi
as well as the final adjudication of the main application in terms of
Part B of this notice of motion;
5.
This order shall immediately be served upon
the attorneys of the 1
st
to 6
th
respondents as well as the 7
th
and 8
th
respondents.
[66]
The relief claimed in Part B is the following:
1.
That the first and second respondents be
interdicted from transferring the farm Vijfhoek no. 164, measuring
384.8512 ha, situated
in the district Lindley and held by the
Testamentary Trust, MT no: 9575/07 (“the trust”) in terms
of the Title Deed
no. T [....] , to the fourth respondent.
2.
That the agreement of sale in respect of
the Vijfhoek no. 164, measuring 384.8512 ha, situated in the district
Lindley and held
by the Testamentary Trust, MT no: 9575/07 (“the
trust”) in terms of the Title Deed no. T [....] ,
concluded between
the first and second respondents, as sellers, and
the fourth respondent, as purchaser, be set aside and/or declared
invalid.
3.
That it be declared that the first and
second respondents are, in their capacities as trustees of the Trust,
not entitled to dispose
of or sell or alienate or transfer the
immovable properties of the trust, recorded below, during the life of
the third respondent
and before the termination of the Trust in
accordance with the provisions of the will:
Portion
1 of the farm Olivia no. 385
, measuring
214.333 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Rooikraal no. 689
, measuring
506.3589 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Nil Desperandum no. 239
, measuring
328.1449 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Nova Scotia no. 605
, measuring
625.2684 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
Portion
1 of the farm Beira no. 607
, measuring
312.6342 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Vijfhoek no. 164,
measuring
348.8512 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] .
4. That the first and
second respondents, in their capacities as trustees of the Trust, are
interdicted from disposing of or selling
or alienating or
transferring the immovable properties of the Trust, recorded below,
during the life of the third respondent and
before the termination of
the Trust in accordance with the provisions of the will of the late
Petrus Jacobus Botha:
Portion
1 of the farm Olivia no. 385
, measuring
214.333 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Rooikraal no. 689
, measuring
506.3589 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Nil Desperandum no. 239
, measuring
328.1449 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Nova Scotia no. 605
, measuring
625.2684 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
Portion
1 of the farm Beira no. 607
, measuring
312.6342 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The
farm Vijfhoek no. 164
, measuring
348.8512 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] .
5. That the first and
second respondents be ordered to pay the applicants’ costs, as
between party and party, in respect of
the main application in terms
of Part B of the notice of motion
de bonis propriis
together
with the third and fourth respondents, jointly and severally, the one
to pay the other to be absolved.
6. That any of the fifth
to eight respondents who oppose the main application in terms of part
B of the notice of motion be ordered
to pay the costs of the main
application, jointly and severally, with the first, second, third,
and fourth respondents, the one
to pay the other to be absolved.
7. That the eighth
respondent be directed to record the interdicts granted in terms of
paragraphs 1 and 4 of Part B of the notice
of motion against the
title deeds of the relevant immovable properties of the Trust.
[67]
On 11 November 2021 Mathebula, J ordered that:
1.
The first and second respondents are
interdicted from transferring the ownership of the farm Vijfhoek no.
164, measuring 348,8512
ha, situated in the district Lindley and held
by the Petrus Jacobus Botha Trust, MT no: 9575/07 in terms of Title
Deed no. T
[....] , to the fourth respondent pending the final
adjudication of the main application in terms of Part B of the notice
of motion;
2.
The issue regarding the joint and severally
liability of the first to fourth respondents for the costs relating
to the issuing of
the rule
nisi
and the granting of the interim relief pending the final adjudication
of the application for the issuing of the rule
nisi,
including the costs occasioned by the
appearance in court on 14 October 2021 and on 11 November 2021 and
the issue whether a
de bonis propriis
costs order should be granted against the first and second
respondents, stand over for determination during the adjudication of
the main application in terms of Part B of the notice of motion; and
3.
The costs occasioned as a result of the
appointment of the curator
ad litem
shall be paid out of the trust fund.
CONCLUSION
[68]
The first, second, third and fourth respondents and advocate Van
Vuuren acted
ultra vires.
They did not comply with the
prevailing law and the trust instrument. One may be able to argue, in
light of the history of the case,
that the conduct of the trustees,
Advocate van Vuuren and the fourth respondent was an endeavour to
circumvent the fact that the
fourth respondent, in effect, did not
gain equally; or gained next to nothing from the will. The testator
clearly did not want
for him to gain ownership of a farm without the
co-operation of the other heirs. It may also be inferred that the
only manner in
which he was to acquire ownership of any farm was to
buy it lawfully. The testator also clearly did not want for the third
respondent
to gain ownership of the farms or to use the farms to
bolster her income.
[69]
The alleged underhandedness is neutralised by the fact that several
legal representatives and
the Master of the High Court advised that
the sale of the farm may be legal. The court is thus prevented from
making an order
de bonis propriis
against the first, second,
third and fourth respondents.
[70]
The conduct of the fourth respondent and the withdrawal of the
attorneys for the first and second
respondents after the conclusion
of the hearing do speak volumes. The conduct of the trustees in
collusion with the fourth respondent
must be reported to the Master
of the High Court and the suitability of the trustees to remain as
such must be investigated. The
conflict of interest of the second
respondent is glaringly inappropriate and not in the interest of the
administration of justice.
A costs order on an attorney and client
scale will be proper in the circumstances of the case.
[71]
ORDER
Having considered the
notice of motion and the documents before the court and having heard
the legal practitioners on behalf of
the applicants and the first to
fourth respondents as well as the curator
ad litem
: It is
ordered that:
1. The first and second
respondents, in their capacities as trustees of the Petrus Jacobus
Botha Testamentary Trust (“the
Trust”), are interdicted
from transferring the farm Vijfhoek no. 164, measuring 348.8512 ha,
situated in the district of
Lindley and held by the Trust in terms of
Title Deed no. T [....] , to the fourth respondent.
2. The agreement of sale
in respect of the farm Vijfhoek no. 164, measuring 348.8512 ha,
situated in the district of Lindley and
held by the Trust in terms of
Title Deed no. T [....] , concluded between the first and
second respondents, as the sellers,
and the fourth respondent, as the
purchaser, is declared invalid and set aside.
3. It is declared that
the first and second respondents, in their capacities as trustees of
the Trust, are not entitled to dispose
of or sell or alienate or
transfer the immovable properties of the Trust, recorded below,
during the life of the third respondent
and before the termination of
the Trust in accordance with the provisions of the will:
Portion
1 of the farm Olivia no. 385
, measuring
214.333 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The farm
Rooikraal no. 689
, measuring 506.3589
ha, situated in the district of Lindley, held in terms of Title Deed
no. T [....] ;
The
farm Nil Desperandum no. 239
, measuring
328.1449 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The farm
Nova Scotia no. 605
, measuring 625.2684
ha, situated in the district of Lindley, held in terms of Title Deed
no. T [....] ;
Portion 1 of the
farm Beira no. 607
, measuring 312.6342
ha, situated in the district of Lindley, held in terms of Title Deed
no. T [....] ;
The farm Vijfhoek
no. 164
, measuring 348.8512 ha,
situated in the district of Lindley, held in terms of Title Deed no.
T [....] .
4.
The first and second respondents, in their
capacities as trustees of the trust, are interdicted from disposing
of or selling or
alienating or transferring the immovable properties
of the trust, recorded below, during the life of the third respondent
and before
the termination of the trust in accordance with the
provisions of the will of the late Petrus Jacobus Botha:
Portion
1 of the farm Olivia no. 385
, measuring
214.333 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The farm
Rooikraal no. 689
, measuring 506.3589
ha, situated in the district of Lindley, held in terms of Title Deed
no. T [....] ;
The
farm Nil Desperandum no. 239
, measuring
328.1449 ha, situated in the district of Lindley, held in terms of
Title Deed no. T [....] ;
The farm
Nova Scotia no. 605
, measuring 625.2684
ha, situated in the district of Lindley, held in terms of Title Deed
no. T [....] ;
Portion 1 of the
farm Beira no. 607
, measuring 312.6342
ha, situated in the district of Lindley, held in terms of Title Deed
no. T [....] ;
The farm Vijfhoek
no. 164
, measuring 348.8512 ha,
situated in the district of Lindley, held in terms of Title Deed no.
T [....] .
5. The first, second,
third and fourth respondents are ordered to pay the applicants’
costs, on the scale as between attorney
and client, in respect of the
main application in terms of Part B of the notice of motion.
6. The first, second,
third and fourth respondents are ordered to pay the applicants’
costs, on the scale as between attorney
and client, in respect of the
application for the interim relief granted in terms of the orders
issued by the court on 14 October
2021 and 11 November 2021,
including the costs occasioned by the appearance in court on 14
October 2021 and 11 November 2021.
7. The eighth respondent
is directed to record the orders granted in terms of paragraphs 1 and
4 above against the title deeds of
the relevant immovable properties
of the trust.
8. The
Master of the High Court: Free State is ordered to investigate the
conduct of the trustees; the first and second respondents,
and to
ensure the legal and proper administration of the trust.
M
OPPERMAN, J
APPEARANCES
FOR
THE APPLICANTS
ADVOCATE D.J. VAN DER WALT
SC
FREE STATE SOCIETY OF
ADVOCATES
082 883 2889
MR. L STRATING
SYMINGTON DE KOK
ATTORNEYS
1698 Nelson Mandela Drive
Westdene
BLOEMFONTEIN
051 430147711
E-mail: mnel@symok.co.za
FKB0095/mm
CURATOR
AD LITEM
ADVOCATE C.D. PIENAAR
FREE STATE SOCIETY OF
ADVOCATES
082 378 1381
E-mail:
tpienaar@law.co.za
FOR
THE FIRST &
SECOND
RESPONDENTS
ADVOCATE J.M.C JOHNSON
FREE STATE SOCIETY OF
ADVOCATES
051 430 3567
MR. OJ VAN SCHALKWYK
LOVIUS BLOCK ATTORNEYS
31 First Avenue
Westdene
BLOEMFONTEIN
051 430 3874
Ref:
E09955*OVS/lv/S350/21
FOR
THE THIRD &
FOURTH
RESPONDENTS
ADVOCATE A SANDER
FREE STATE SOCIETY OF
ADVOCATES
051 430 3567
[1]
Edmond Cahn,
an American lawyer writing in the Georgetown Law Journal
in 1937, E
N Cahn,
Testamentary
Construction: The Psychological Approach
(1937) 26 Geo L J 17 as quoted in
Williams,
R,
Construction
of Wills: “Tips, Traps and the Latest Cases,
2017,
https://brisbanechambers.com/wp-content/uploads/2018/09/Construction-of-wills-May-2017-R-Williams.pdf
on 7 May 2022.
[2]
Coke
CJ in
Roberts
v Roberts
(1613) 2 Bulster 124 at 130,
80 ER 1002
at 1008 as quoted in Corbet
et
al, The Law of Succession in South Africa
,
2
nd
edition (2001) at Chapter XX1, page 447.
[3]
Williams,
R,
Construction
of Wills: “Tips, Traps and the Latest Cases,
2017,
https://brisbanechambers.com/wp-content/uploads/2018/09/Construction-of-wills-May-2017-R-Williams.pdf
on 7 May 2022.
[4]
King
v De Jager
2021 (4) SA 1 (CC).
[5]
The
above was confirmed in
Goosen
v Wiehahn
2020 (2) SA 341
SCA at paragraph [9],
Wilkinson
v Crawford N.O.
2021
(4) SA 323
(CC) at paragraph [35],
Van
Deventer v Van Deventer
[2007] 3 ALL SA 236
(SCA) at paragraph [6] and
Bothma-Batho
Transport (Edms) Bpk v S Bothma and Seun Transport (Edms) Bpk
2014 (2) SA 494
SCA at paragraph [12].
[6]
The Trust
Property Control Act No. 57 of 1988: “Section 12. Separate
position of trust property. - Trust property shall not form part of
the personal estate of the trustee except in so far as he
as trust
beneficiary is entitled to the trust property.”
[7]
Pages
3 to 4 of the Applicant’s Heads of Argument at paragraphs 8.1
to 8.5.
[8]
“
FA30”
at page 253. The mother and Morrison were the authorized trustees of
the Trust during the transfer of a farm to the
fourth respondent in
2012/2013 (see “FA11” the letters of authority issued by
the Master of the High Court; Free
State; the seventh respondent.)
[9]
Third
& fourth respondents’ Answering Affidavits at paragraph 14
on pages 465 and Paragraphs 51.1 to 51.3 on page 476.
[10]
The Master referred
the court to page 307 at paragraph 180 and page 314 at paragraph
190
of
Honoré’s
South African Law of Trusts
,
5th edition; page 78, paragraph B16 of
Trusts
by WM van der Westhuizen; Chapter 23, paragraph 23.33 of Meyerowitz
on
The
Administration of Estates and their Taxation
,
2010 edition and Chapter XXI of
The
Law of
Succession in South Africa
,
second edition by Corbett, Hofmeyer and Kahn.
[11]
“FA2” at
pages 70 to 75:
GESAMENTLIKE
TESTAMENT
Ons
die ondergetekendes,
PETRUS
JACOBUS BOTHA
(IDENTITEITSNOMMER
[....] )
en
LUCIA
JACOBA BOTHA
(IDENTITEITSNOMMER
[....] )
getroud
buite gemeenskap van goedere tans woonagtig te die plaas Vyfhoek,
Arlington, distrik Lindley, maak hiermee ons testament
soos volg:
1.
HERROEPINGSKLOUSULE
Ons
herroep hiermee alle vorige testamente, kodisille en/of ander
testamentêre aktes deur ons voor die datum hiervan gemaak,
hetsy gesamentlik en/of afsonderlik.
2.
AFSTERWE TESTATRISE
Ingeval ek, die
testatrise, die eerstesterwende van ons, die testateure, mag wees,
bemaak ek my gehele boedel
en nalatenskap aan my
eggenoot
PETRUS JACOBUS BOTHA
.
3.
AFSTERWE TESTATEUR
Ingeval
ek, die testateur, die eerssterwende van ons, die testateure, mag
wees, bemaak ek my gehele boedel en nalatenskap soos
volg:
3.1
Ek bemaak spesiaal aan my eggenote
LUCIA JACOBA BOTHA
die
volgende:
3.1.1 My
woonreg in Residentia Stigting te Bethlehem.
3.1.2 Al die
wild op die plaas NOVA SCOTIA.
3.1.3 Alle
huishoudelike toebehore en meublement.
3.1.4 ‘n
Kontantlegaat van R1.000,000-00 (EEN MILJOEN RAND)
3.2
Die restant van my boedel aan die trustee in trust van die
PIET
BOTHA FAMILIE TRUST
welke hierkragtens geskep word.
My trustee sal beklee wees met die volgende magte pligte en
trustopdragte,
naamlik:
3.2.1
Om enige bates te aanvaar, te beheer en te administreer.
3.2.2 Om in
belang van die trust, in sy diskresie, die bates te verhuur, te
verkoop of tegelde te maak, of om enige
roerende en onroerende
eiendom te huur of aan te koop.
3.2.3 Om in
die belang van die trust enige kontant op sodanige wyse te belê
as wat hy mag goeddink, sonder om
tot erkende trustee-sekuriteite
beperk te word. Die trustee word hiermee ook gemagtig om enige
belegging op die roep en
die opbrengs ooreenkomstig die voorafgaande
bepalings te belê.
3.2.4 Om ter
uitvoering van enige bepaling van hierdie trust enige som geld te
leen en om enige vorm van sekuriteit
te verskaf vir die behoorlike
terugbetaling daarvan, insluitende die mag om enige bates van die
trust te verpand, te belas of
met ‘n verband te beswaar.
3.2.5
Om die netto inkomste aan die testatrise oor te dra en uit te betaal
tot by haar afsterwe.
3.2.6 Om na
die afsterwe van die testatrise die netto inkomste oor te dra en uit
te betaal aan ons kinders
THOMAS DANNHAUSER BOTHA, CHRISTINE DE
VILLIERS en CATHARINA ANDRISINA NOOME
vir ‘n periode van
een (1) jaar en indien nodig soveel van die kapitaal as wat hy na sy
goeddunke nodig mag ag, aan te
wend vir die onderhoud, opvoeding en
geleerdheid van ons kinders voormeld en die afstammelinge van ons
kinders of vir enige ander
doel in hulle belang.
3.2.7 Om,
nadat ‘n periode van een (1) jaar sedert die afsterwe van die
testatrise verstryk het en indien die
trust sou voortgaan in die
diskresie van die trustee, soveel van die inkomste en indien nodig
van die kapitaal as wat hy na sy
goeddunke nodig mag ag, aan te wend
vir die onderhoud, opvoeding en geleerdheid van ons kinders voormeld
en die afstammelinge
van ons kinders of vir enige ander doel in
hulle belang. Enige inkomste, wat nie vir die bogemelde
doeleindes aangewend
word nie, mag gekapitaliseer word.
3.2.8 Om,
nadat die periode van een (1) jaar sedert die afsterwe van die
testatrise verstryk het, op enige stadium
wat die trustee in sy
uitsluitlike oordeel mag vasstel, ‘n trustbate(s) in ‘n
begunstigde te laat vestig.
3.2.9 Om die
trust te beëindig na die afsterwe van die testatrise in die
uitsluitlike oordeel van die trustee,
maar nie
voordat
‘n periode van minstens een (1) jaar na die afsterwe van die
langslewende van ons verloop het nie en die kapitaal
en enige
opgelope inkomste oor te dra en uit te betaal soos volg:
3.2.9.1
Aan ons dogter
CHRISTINE DE VILLIERS
die plaas bekend as
ROOIKRAAL, LINDLEY
.
3.2.9.2
Aan ons dogter
CATHARINA ANDRISINA NOOME
die plaas bekend as
VYFHOEK, LINDLEY
.
NOTA
:
Indien voormelde erfgename egter sou besluit om die plase te verkoop
sal hulle nie geregtig wees om die plase te verkoop
aan ‘n
derde persoon nie alvorens hulle die plase te koop aangebied het aan
hul broers
THOMAS DANNHAUSER BOTHA en DANIëL JACOBUS BOTHA
en hul skriftelik in kennis gestel is dat hul broers nie belangstel
om die eiendom aan te koop teen ‘n markverwante koopprys
of
Landbank waardasie nie.
3.2.9.3
Aan ons seun
THOMAS DANNHAUSER BOTHA
die plase bekende as
NOVA SCOTIA en BEGINSEL, LINDLEY
.
3.2.9.4
Aan die wettige afstammelinge, nié aangenome kinders
nie, van
my seun
DANIëL JACOBUS BOTHA
wat reeds gebore en in lewe
is ten tye van sy dood, die plaas bekend as
NILL DESPERANDUM,
LINDLEY
. Indien
DANIëL JACOBUS BOTHA
geen wettige
afstammelinge nalaat soos hiervoor omskryf nie, bemaak ek die plaas
NILL DESPERANDUM, LINDLEY
aan die wettige afstammelinge van
my seun
THOMAS DANNHAUSER BOTHA
wat dan in lewe is.
Hierdie bemaking sal onderhewig wees aan die lewenslange gebruiksreg
ten gunste van my seun
DANIëL JACOBUS BOTHA
, met
vrystelling van sekerheidstelling.
3.2.9.5
My kleinseuns,
NARDUS DE VILLIERS, PIETER DE VILLIERS
en
JACO
BOTHA
, in gelyke dele, die plaas
OLIVIA distrik LINDLEY
.
3.2.9.6
Die restant in gelyke dele ten gunste van ons kinders
THOMAS
DANNHAUSER BOTHA, CHRISTINE DE VILLIERS
en
CATHARINA
ANDRISINA NOOME
.
3.2.9.7
Ek bepaal hiermee uitdruklik dat sou enige begunstigdes
‘n eis
teen my boedel indien vir geld deur my aan hom/haar geskuld, word
sodanige begunstigde summier onterf en sal hy/sy
nie geregtig wees
op enige voordele kragtens hierdie testament nie.
4.
GELYKTYDIGE AFSTERWE
Indien ons gelyk of
binne dertig (30) dae na mekaar te sterwe kom, dan en in daardie
geval bemaak ons ons onderskeie boedels en
bates aan die trustees in
trust soos vermeld onder klousule 3.2 met onderafdelings hierbo,
behalwe dat enige verwysing na die
eggenote asook die een (1) jaar
periode sal verval.
5.
SUBSTITUSIE
Indien
‘n kind wat kragtens hierdie testament sou erf, ons vooroorly
of sou sterf voor die beëindiging van ‘n
trust, dan gaan
so ‘n kind se belange, aan die vooroorledene se wettige
afstammelinge staaksgewys, of by gebreke aan afstammelinge
dan aan
die oorblywende aangewese kinders.
6.
ALGEMEEN
6.1
Indien ‘n erfgenaam nie by afsterwe of by beëindiging van
enige trust geskep
na vore kom of opgespoor kan word nie, of deur ‘n
geneesheer as geestelik ongesteld gesertifiseer is, word bepaal dat
sodanige
begunstigde se erflating nie aan die voogdyfonds oorbetaal
moet word nie, maar deur ons eksekuteur of trustee volgens goeddunke
in trust geadministreer word op enige toepaslike wyse in
ooreenstemming met die magte, pligte en bevoegdhede soos vervat in
die trust voormeld.
6.2
Ons bepaal dat enige roerende bate(s) wat ‘n minderjarige
erfgenaam kragtens hierdie
testament of ‘n trust in hierdie
testament geskep ontvang, aan die erfgenaam se voog, in die
diskresie van die trustee
oorhandig mag word vir veilige bewaring
totdat meerderjarigheid bereik word. Ons stel sodanige voog vry van
die verpligting om
sekuriteit te verskaf vir bate(s) aan hom/haar
oorhandig en sal ‘n kwitansie deur die voog as voldoende
ontheffing aan
ons eksekuteur(s) en/of trustee(s) dien.
6.3
Dit is ‘n uitdruklike voorwaarde van hierdie testament dat
enige erfenis wat aan
enige erfgenaam hierkragtens mag toeval, sowel
as enige inkomste wat daaruit verdien mag word asook enige inkomste
wat uit ‘n
trust hierin geskep, verdien mag word, uitgesluit
sal wees van die regsgevolge van ‘n bestaande of toekomstige
huwelik
binne gemeenskap van goedere of wat onderhewig is aan die
aanwasbedeling. Ingeval van ‘n vroulike erfgenaam sal so
‘n erfenis nie onderhewig wees aan die kontrole,
beskikkingsreg en maritale mag van haar eggenoot nie. Verder
sal
‘n ontvangserkenning van enige vroulike erfgenaam, sonder
die bystand van haar eggenoot, voldoende ontheffing aan ons
eksekuteur
wees.
7.
BENOEMING VAN AMPTE
7.1
As eksekuteur benoem ons die langslewende van ons en ingeval
klousule 4 van toepassing
mag wees benoem ons ons dogter CHRISTINE
DE VILLIERS as eksekuteur.
7.2
As trustee van die trust voormeld benoem ek die TESTATEUR, my
EGGENOTE voormeld en by
haar afsterwe dan my kinders CHRISTINE DE
VILLIERS, THOMAS DANNHAUSER BOTHA en CATHARINA ANDRISINA NOOME.
7.3
Alle ampsdraers hierbo word hiermee uitdruklik vrygestel van die
verskaffing van sekuriteit
aan die Meester van die Hooggeregshof.
8.
FOOIESTRUKTUUR
Ons eksekuteur
sal geregtig wees op vergoeding vir sy dienste en wel op die
voorgeskrewe wettige tarief min ‘n korting van
vyftig present
(50%).
9.
ONDERNEMING EN MAGTIGING
Enslins
onderneem om hierdie testament na ondertekening in veilige bewaring
te hou en magtig ons Enslins om direk of deur bemiddeling
met my te
kommunikeer en die testament of enige ander dokument per
geregistreerde pos na my laaste bekende adres te stuur.
ALDUS
GEDOEN en GETEKEN te
Bethlehem
op die
25ste
dag van
Julie 2007
in die teenwoordigheid van ondergetekende getuies,
wat in ons teenwoordigheid en in die teenwoordigheid van mekaar
hierdie testament
as getuies onderteken het.
[12]
Page
25 at paragraph 33.
[13]
The
applicants.
[14]
Page
25 at paragraph 34.
[15]
Page
35 at paragraph 61.
[16]
“
FA34”.