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[2022] ZAFSHC 183
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Campher N.O. v van Wyk and Others (4480/2021) [2022] ZAFSHC 183 (27 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
4480/2021
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In
the application between:
HESTER
SUSANNA CAMPHER N.O.
Applicant
and
ELRE
VAN
WYK
First Respondent
MASTER
OF THE HIGH COURT, FREE STATE
DIVISION,
BLOEMFONTEIN
Second Respondent
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
Third Respondent
CORAM:
REINDERS,ADJP et ZIETSMAN,AJ
HEARD
ON
:
25 JULY 2022
JUDGMENT
BY:
ZIETSMAN,
AJ
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email, and
release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 27 July 2022.
[1] This
is an application in which the Applicant moves for an order that the
decision taken by the
Second Respondent in the deceased estate of
Cornelius Lourens Campher (CL Campher, Jnr) in terms of section 35(9)
of the Administration
of Estates Act, Act 66 of 1965 be reviewed and
set aside, together with further declaratory orders.
[2] It
is to be noted that the First Respondent, through her attorneys,
objected to a liquidation
and distribution account compiled by the
Applicant in the aforesaid deceased estate. The Applicant acted in
her capacity as executrix
in compiling the liquidation and
distribution account, as well as in her personal capacity as being
the heir of the properties
collectively referred to as “
the
Gideon Farms”
and “
the Murphy Farms”
.
[3] It
is further to be noted that the aforesaid objection was filed by the
First Respondent before
the liquidation and distribution account laid
for inspection, and even before it was so advertised to be available
for inspection
and objections. The aforesaid objection was made in
terms of section 35(7) of Act 66 of 1965.
[4] The
Applicant, comprehensively, filed an answer to the objection with the
Master of the High Court
stating the reasons why the objection should
not be successful on both the objections as to the Gideon Farms as
well as the Murphy
Farms, whereafter the Master of the High Court
(Second Respondent) made a decision.
[5] The
aforesaid decision, it seems to be in terms of section 35(9) of the
Administration of Estates
Act, Act 66 of 1965, which reads as
follows:
“
Your
objection is not well founded in as section 2C(2) relied upon based
on the following:
In terms of the Will dated
26/3/1973, which reads as follows:
‘
Die
eiendomme word verbind met
fideicommissum
vir twee geslagte ...’
This
fideicommissum created is for two generations in favour of the two
daughters. The daughter of decease (sic) Liesl van Wyk who
predeceased her father – who is the first fideicommissary.
Therefore her child Elre van Wyk will become the second
fideicommissary;
in other words the death of Liesl van Wyk does not
terminate fideicommissum, but brings about the acceleration of the
interest
to the substitute, paragraph 20 of the judgment Supreme
Court of Appeal in Nicolette Erasmus NO v Estate Late Barend
Christiaan
Booysen, case no. 192/2013 refers.
The account should therefore be
amended to include the Gideon farms and be awarded to Elre van Wyk.
Your attention is directed to
section 35(10) of the Administrative of Deceased Estate Act,
66/1965.”
[6] The
Applicant thereafter filed the present application moving, amongst
others, for the reviewing
and setting aside of the Second
Respondent’s decision in terms of Uniform Court Rule 53. After
the application was served
upon the Master of the High Court, the
Master furnished the following reasons for its decision:
“
1.
Reason being that the death of the
fideicommissary prior to vesting does not result in the termination
of the fideicommissum that
brings about the acceleration of interest
of the substitute, my attached letter dated 2 September 2021 refers.”
[7] It
does not seem that the Applicant has filed a supplementary affidavit
after the reasons became
available, whereafter the First Respondent
indeed filed an opposing affidavit. The Applicant did not reply
thereto.
[8] All
the farms described as the Gideon Farms as well as the Murphy Farms
resorted in the deceased
estate of CL Campher (Jnr) and the Applicant
in her capacity as executrix of that estate was called upon to
administer such an
estate and to decide how the different farms (with
reference to the two groups of farms) should be allocated by the
interpretation
of two Wills, firstly the Will of Wessel Jacobus
Wessels and Cornelia Johanna Wessels dated 26 March 1973, as well as
the Last
Will and Testament of Cornelius Lourens Campher dated the
10
th
of April 1984.
[9]
9.1 In the light of
the decision by the Master, annexed as annexure “F” to
the founding papers, it
is firstly common cause that such a decision
was taken also before the liquidation and distribution account laid
for inspection
or was even advertised to lay for inspection.
9.2 The decision by
the Master (with an ostensible date stamp of 2 September 2021) is
however unclear and confusing.
This much was contended by both Messrs
Snellenburg SC and Pohl SC. The Master indicated on the one hand that
the objection is not
well founded, but on the other hand made a
decision that the account should be amended.
9.3 Besides the
afore going, the Master of the High Court also only mentions the
Gideon Farms and not the Murphy
Farms. Both the Gideon Farms as well
as the Murphy Farms formed part of the objection and the answer
thereto. With reference to
the last-mentioned, the Master found that
the account should be amended to include the Gideon Farms and be
awarded to Elre van
Wyk.
9.4 The liquidation
and distribution account, annexed as annexure “C” to the
founding papers however
specifically indicated under the heading
fiduciary asset account that: “
There are no fiduciary assets
to account for”
. According to the distribution account, all
the farms referred to as the Gideon Farms as well as the farms
referred to as the Murphy
Farms will have to be distributed to the
Applicant in her personal capacity. It is unclear to me whether the
liquidation and distribution
account is signed, insofar as the page
referring to the signatures is illegible.
9.5 The Master
therefore applied its mind, it seems, firstly as far as section 2C(2)
of the Law of Succession
Amendment Act, Act 43 of 1992 is concerned,
which section places a restriction on the acceleration of a
fideicommissum after argument
was heard from Mr Pohl SC in this
regard. It seems that the Master’s decision should be
understood, according to him, that
the objection is not well founded
as far as section 2C(2) is concerned, but otherwise well founded in
and because of the decision
by the SCA in
Erasmus NO v Estate
Late Barend Christiaan Booysen
. In other words, according to
Mr Pohl SC, that the decision effectively means that an acceleration
indeed should take place as
far as the fideicommissum is concerned
and that (according to the Master’s decision) the Gideon Farms
need to be allocated
to Elre van Wyk (First Respondent).
9.6 The Applicant,
as represented by Mr Pohl SC, is of the opinion that the
last-mentioned decision by the Second
Respondent is clearly wrong
insofar as the facts of the present matter are distinguishable to the
facts in the
Erasmus NO
-matter
supra
.
[10] What is still
unclear, even if the aforesaid interpretation of the Master’s
decision is followed, is
the outcome in respect of the Murphy Farms.
The aforesaid specifically in the light thereof that the one set of
farms should be
dealt with as a fideicommissum multiplex (the Gideon
Farms) and the other as a fideicommissum simplex (the Murphy Farms).
[11] The
fideicommissum multiplex has indeed two sets of fideicommissaries,
whilst a fideicommissum simplex is
a fideicommissum with only one
fideicommissary. What is clear, is that both the Last Wills and
Testaments of Mr and Mrs Wessels
on the one hand and that of Mr
Campher (Jnr) on the other hand needed to be interpreted to come to a
conclusion and eventually
to a decision. Be that as it may, it is
doubtful whether the Master of the High Court properly applied its
mind to all the issues
at stake, firstly, and secondly, is unclear
whether the objection is upheld, and/or whether the objection failed.
If it is upheld,
why only the Gideon Farms are referred to and not
the Murphy Farms.
[12] Although there is no
prohibition upon this Court to reconsider all the facts afresh and to
come to the conclusion
or decision which the Master should have come
to, the Court will only come to such an assistance if it is clear to
the Court what
the Master considered in applying its mind, and more
specifically which factors are to be considered in the circumstances,
to have
come to the conclusion and decision.
[13] It is also
noteworthy in the circumstances of this matter, that the objection
initially was filed with the
Master of the High Court before the
liquidation and distribution account laid for inspection, the
objection was answered before
such a date and the Master made a
decision in terms of section 35(9) of the Administration of Estates
Act before such a date. In
the decision of
Götz v The
Master and Others NNO
1986 (1) SA 499
(N) at p. 503
,
it was found by the KwaZulu-Natal High Court that provided that an
objection is in proper form, then, notwithstanding that it
is lodged
with the Master prior to the period for the liquidation and
distribution account in the deceased estate to lie open for
inspection, the objection will be one as envisaged in section 35(7).
“
The Master’s ruling thereon will, however, only be
given after the account has lain open for inspection and after the
procedure
laid down in ss 35(7), 35(8) and 35(9) has been followed”
.
[14] I am therefore
of the view that the aforesaid matter should be referred back to the
Master of the High Court,
Free State Provincial Division in order to
consider the objection properly together with the answer thereto.
This should be done
and dealt with by the Master of the High Court
after the liquidation and distribution account has lain for
inspection for the prescribed
period. It might be that there are some
other objections as well, which can then be dealt with by the Master
simultaneously with
the present objection. If the objection is
successful, the Master should make a decision regarding such success,
fully, and not
only in respect of the Gideon Farms.
[15] In the
aforesaid circumstances I do not think that in the present matter the
Court should exercise the function
of the Master in the
circumstances, and therefore the application including the objection
and the answer thereto are referred back
to the Master of the High
Court to properly consider the objection and/or other objections on
the basis as set out in
Götz v The Master and Others NNO
supra
.
[16] In the
circumstances of the matter, I think it is also fair that the costs
of this application should be
borne by the deceased estate of CL
Campher (Jnr).
I
THEREFORE MAKE THE FOLLOWING FINDINGS
:
1.
The objection in terms of Section 35(7)
together with the answer thereto, which form part of the papers in
case number
4480/2021
,
are referred back to the Second Respondent for reconsideration at the
appropriate time;
2.
The costs of this application to be borne
by the deceased estate of CL Campher Jnr.
P
ZIETSMAN, AJ
I
concur.
REINDERS,
ADJP
On
behalf of the Applicants:
Adv Pohl SC
Instructed
by:
Mr L Strating
Symington & De
Kok
169B
Nelson Mandela Drive
Bloemfontein
E-mail:
lstrating@symok.co.za
On
behalf of the Respondents:
Adv N Snellenburgh SC
Instructed
by:
Mr M Mdhluli
Rossouws Attorneys
119
President Reitz Avenue
Bloemfontein
E-mail:
marvin@rossouws.com