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2022
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[2022] ZAFSHC 163
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Gouws v Hamman and Others (3871/2017) [2022] ZAFSHC 163 (27 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number:3871/2017
Reportable:
NO/YES
Of
Interest to other Judges: NO/YES
Circulate
to Magistrates: NO/YES
In
the matter between:
CHARLOTTE
MATTY GOUWS
Applicant
And
ANDRE
HAMMAN
1
st
Respondent
MARRY
GERTRUDE HAMMAN
2nd Respondent
THE
MASTER OF THE FREE STATE
3
rd
Respondent
ERIC
STEPHEN DU PREEZ NO
4
th
Respondent
SALOME
LEONARA LAMPRECHT
5
th
Respondent
MATHILDA
DU PREEZ
6th
Respondent
MELANIE
JONKER
7th
Respondent
HEARD
ON:
This
application was
determined
on the basis of written arguments instead of an oral hearing.
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by
circulation
to the parties' representatives by way of email and by release
to
SAFLII. The date and time for hand-down is deemed to be 16h00 on 27
June
2022.
[1]
This is an opposed application for leave to appeal against my
judgment and the consequent
order delivered on 31 January 2022 in
terms of which the will of the late Mrs Olga Valentia Gouws, dated 6
January 2017 in which
she bequeathed her estate to the applicant and
the fifth to seventh respondents was declared invalid and her other
will signed
two years earlier on 22 October 2015 in which she
bequeathed her estate to the applicant, first, second, fifth and
sixth respondents
was declared as her Last Will and Testament. The
fourth to seventh respondents were ordered to pay the costs of the
action jointly
and severally one paying the other to be absolved.
[2]
In the main action, the first and second respondents were the
plaintiffs and the applicant
and the third to seventh respondents
were the defendants. For the sake of convenience, the parties are
referred to as cited in
the main action the applicant herein as the
third defendant and the first and second respondents as the
plaintiffs.
[3]
The application is, by consent between the parties determined on the
basis of written
heads of argument.
[4]
The application is based on the provisions of
s17(1)
(a)
(i) or (ii) of the
Superior Courts Act 10 of 2013
which have
heightened the threshold of the test applicable in applications for
leave to appeal in that, leave can only be granted
if I’m
certain that that the appeal would have a reasonable prospect of
success or there is some other compelling reason
why the appeal
should be heard. See
Acting
National Director of Public Prosecutions & others v Democratic
Alliance
in Re:
Democratic
Alliance v Acting National Director of Public Prosecutions &
others
(19577/09)
[2016] ZAGPPHC 489
(24 June 2016);
[2016]
JOL 36123
(GP)
.
[5]
The onus is on the
third defendant to fulfil this
stringent threshold by convincing this court that she has prospects
of success on appeal and that
based on those facts
another
court would come to a different conclusion.
[6]
I deem it unnecessary to repeat the background facts of this matter
in this application
as they are comprehensively illustrated in my
main judgment, paragraphs 1 to 7.
[7]
The third defendant has submitted a lengthy notice of appeal which
comprises of nine
(9) grounds of appeal which are essentially
premised on the grounds that this court erred in declaring the will
signed on 6 January
2017 invalid on the grounds that when Mrs Gouws
signed the will she was mentally incapable of appreciating the nature
of her actions
by reason of being afflicted with dementia despite the
fact that at the time that she signed the will the doctor who had
apparently
diagnosed her with dementia was not present.
[8]
I have dispassionately considered the grounds for appeal and the
written heads of
arguments filed by the respective parties and
conclude that in my main judgment I’m of the view that I have
adequately dealt
with all the aspects raised by the third defendant
in the grounds of appeal.
[9]
At paragraph 48 of my judgment I alluded to the fact the defendants
did not lead any
expert evidence to gainsay the evidence led by the
plaintiffs’ expert, Dr Bester to the effect that when Mrs.
Gouws was admitted
at the hospital on 6 January 2017 which is the day
that she allegedly signed the will she was in a state of delirium
resulting
from respiratory distress caused by advanced dementia, lung
infection and worst kind of diabetes as a result, it was impossible
that barely nine (9) hours later she would have regained her cortical
senses to be able to understand and appreciate the nature
and effect
of her actions.
[10]
Dementia or any other physical ailment on its own does not reduce a
testator’s power to
make a will provided, the testator still
has the sufficient intelligence to understand the testamentary act.
See
Tregea
and Another v Godart and Another
1939
AD 16
and
Essop
v Mustapha and Essop NNO and Others
1988
(4) SA 213
(D).
[11]
In this matter, it was Dr Bester’s undisputed testimony that
Mrs Gouw’s physical
ailments affected her capacity to make
good, proper and informed decisions. His evidence that due to her
ailments, she was also
heavily medicated with antibiotics and
antipsychotic medication which had an effect on her mental state was
also uncontroverted.
Furthermore, it was also common cause that a
year before this will was purportedly signed by Mrs Gouws, on 14
November 2016 Doctor
Bester had provided the defendants with a
medical opinion on their request to the effect that Mrs Gouw was
mentally incapable of
managing her own affairs.
[12]
I’m thus not persuaded that the appeal would have any
reasonable prospect of success neither
is there is any compelling
reason why the appeal should be heard. The third defendant’s
application for leave to appeal
stands to be dismissed.
[13]
In the result the following order is made:
1.
The application for
leave to appeal is dismissed, the applicant shall pay the costs.
NS
DANISO, J
For
the applicant:
Mr.
HJ Booysen
JH
Booysen Attorneys
BLOEMFONTEIN
For
the respondent:
Adv.
SJ Reinders
Honey
Attorneys
BLOEMFONTEIN