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[2022] ZAFSHC 302
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Cameron and Another v Wessels and Others (2842/2022) [2022] ZAFSHC 302 (7 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No.: 2842/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TESSA
CAMERON
First
Applicant
MARLé
KRUGER
Second
Applicant
and
WYNAND
GABRIëL
WESSELS
First
Respondent
ANDRIES
JACOBUS MARIUS WESSELS (JNR) N.O.
Second
Respondent
(In
his capacity as Trustee of the Waganella Trust: TMP 4287)
HENDRIK
STEPHANUS LUDEWICKUS DU PLESSIS N.O.
Third
Respondent
(In
his capacity as Trustee of the Waganella Trust: TMP 4287)
WYNAND
JOSEPH BOTHA
N.O.
Fourth
Respondent
(In
his capacity as Trustee of the Waganella Trust: TMP 4287)
THE
REGISTRAR OF DEEDS FREE
STATE
Fifth
Respondent
Coram:
Opperman,
J
Date
of hearing:
3
November
2022
Judgment
Delivered:
7
November
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 7 November 2022. The date and time for hand-down is deemed
to be 7 November 2022 at 15h00.
Summary
:
Habitatio
in terms of will – registration of the servitude – right
to occupation
JUDGMENT
[1]
Little more than what was enunciated in
Hendricks v Hendricks and
Others
(20519/14)
[2015] ZASCA 165
;
2016 (1) SA 511
(SCA) (25
November 2015) by the Supreme Court of Appeal can be said to describe
the atmosphere of this case:
[14]
It is necessary to add one last observation. This unseemly family
feud is highly regrettable. It is plain on the papers that
hard,
inflexible positions have been adopted on both sides.
Ultimately,
no one wins in a matter such as this
. The more desirable outcome,
beneficial to all concerned, is to bury the hatchet and to co-exist
in harmony on the property. One
can only hope that good common sense
will prevail. (Accentuation added)
[2]
To be added is that cases of this nature contaminate the
administration of justice.
The true and real facts of this case is
that one of the feuding parties, the first respondent, very well
realises that his conduct
is morally disgraceful and that he fuelled
the litigation with his unbecoming conduct. Unfortunately, the
de
facto
cause of action does not suit the legal remedies sought.
Any court order that will be granted on the prayers in the Notice of
Motion
will be,
ex lege
so, premature and illegal.
[3]
This is the relief sought by the applicants:
1.
That the right of
Habitatio
, registered under number K194/2015
S with protocol number 489/2015 at the office of the Fifth
Respondent, for the First Applicant,
Second Applicant and First
Respondent be confirmed.
2.
That the right of
Habitatio
, registered under number K194/2015
S with protocol number 489/2015 at the office of the Fifth
Respondent, be shared equally between
the First Applicant, Second
Applicant and First Respondent- each having a one-third share in the
Habitatio
.
3.
That the right to occupy the dwelling, as per the shared
Habitatio
(number K194/2015 S with protocol number 189/2015), to rotate between
the First Applicant, Second Applicant and First Respondent
for a four
(4) month periods- being: 15 January to 14 May, 15 May to 14
September, 15 September to 14 January.
4.
That neither the First Applicant, Second Applicant nor the First
Respondent will have the
right to permanently occupy the dwelling-
outside their rotational term, under their shared right of
Habitatio
.
5.
That all expenses, inclusive of maintenance, renovations, insurance,
administrative costs,
cleaning services regarding the dwelling-
subject to the right of
Habitatio
- to be share equally between
the First Applicant, Second Applicant and First Respondent.
6.
That leave be granted to the Applicants to approach his Court, on the
same papers duly supplemented,
for an order to cancel the
Habitatio
(K194/2015 S protocol number 489/2015) of the First Respondent, in
the event that the First Respondent does not honour the terms
of this
Order.
7.
Cost of the application to be paid by the First Respondent, if this
application is opposed.
8.
Further and/or alternative relief.
[4]
Paragraph 3.7.1.7 of the Last Will and Testament of AJM Wessels that
bequeathed the
habitation to the three siblings clearly has to be
interpreted and declared upon by a court in light of the dispute that
reigns.
This to give clarity and before the application in the
instance may be granted. To grant the application
in casu
will
be to change the words of the will that reads as follows:
3.7.1.7
That all my children, but
for Andries Jacobus Marius Wessels (Jnr) and Jacob
Johannes Wessels,
after the passing of myself and my wife Sonja Hesteria Wessels, shall
have the right to full and unlimited tenure
(
Habitatio
)
off the property referred to in clause 3.1.4 as well as a full right
to disposal over the house content, which rights will prevail
until
the passing of each of these children.
[1]
[5]
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”.
[2]
[3]
[6]
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…”.
[4]
[7]
The construction of wills is often a process without plan or rule.
[5]
The tragedy is the bedlam and hatred caused in cases as in this
application, and between a brother and two sisters, when a will
was
drafted in a manner that might cause confusion.
[8]
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.
[9]
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.
[10]
But this case is not about the interpretation of the provisions
of a will
. This court may not change the words of the will
and declare on the meaning of the will by ordering occupation on a
rotational
basis at this stage. It seems as if the Judgement of
Solomon is the solution. In the story from the Hebrew Bible Solomon
ruled
between two women both claiming to be the mother of a child and
suggested the baby be cut in two, each woman to receive half. Might
the dwelling
in casu
be “cut” in three portions?
[11]
As said; the cause of the litigation is the morally disgraceful
conduct of the first respondent.
He is abusing the words of the will
to sabotage his siblings in the
de facto
use of their right of
habitation of property bequeathed to them by their father. The first
respondent has nothing but invaded the
property. He, in a crafty
manner prevents the applicants from realizing their right to
habitation given to them. This is how he
does it:
1.
The dwelling,
that is at the center of the application, consists of one bedroom, a
lounge area, a kitchen and a bathroom.
2.
The first
respondent has taken permanent primary residency of the property
without contributing to the maintenance and basic upkeep
of the
property. The allegations are that he resides here free of charge.
3.
He moved into
the property with his girlfriend and a minor child.
4.
He claims that
he has a right, in terms of the will, to unlimited tenure of the
property in accordance to the wording of the will.
5.
He maintains
that he does not obstruct the applicants’ rights and have
invited them to stay with him. The real truth is that
there is not
enough space for the two applicants, their husbands and their
children to be occupied at the same time with the first
respondent,
his girlfriend and the minor child. There is much animosity between
them and there has also been attempts to obtain
interdicts against
each other in terms of the
Domestic Violence Act 116 of 1998
. They
will all have to share one bedroom for instance. The suggestion of
the first respondent is not tenable and executable on
the
circumstances and the facts of the case; it is farfetched and
underhanded sabotage.
[12]
The case turns on the servitude of
Habitatio
that was
bequeathed to the applicants and the first respondent in terms of the
will of their father.
[13]
The application is supported by all the respondents but for the first
respondent that opposes
the case.
[14]
In
Hendricks
v Hendricks and Others
supra
Habitatio
is
described and delineated in law to be:
1.
When the
holder, together with his or her family, has the right to dwell in
the house of another without detriment to the constituent
and
fundamental structure.
2.
A lifelong
right to live in a house owned by another defines the right to
habitation.
3.
This right is
registered in the Deeds Office and once that has been done it is
enforceable against everyone, including the owner
of the immovable
property.
4.
It trumps
ownership. The owner’s rights in regard to a house must yield
to the inhabitant’s right of habitation.
5.
The Supreme
Court of Appeal held that the right of habitation was recognized as a
limited real right.
6.
The court also
held that the holder of the right of
Habitatio
could apply for the eviction of the registered owner.
[15]
The unfortunate reality of the case is that the prayers in the Notice
of Motion is not appropriate
at this stage of the state of affairs.
It is a common cause that:
1.
The
habitation is not yet registered in favor of the applicants and the
first respondent. When Mr. AJM Wessels passed away, a Deed
of Session
of
Habitatio
was registered in favor of his wife and the mother of the two
applicants and the first respondent and on 21 April 2015. Since the
mother passed away on 9 February 2019 the Notarial Session of
Habitation
will have to be cancelled. In addition, as the concerned property is
a farm; section 6 of the Subdivision of Agriculture Land Act
70 of
1970 is applicable and consent from the Minister must be obtained for
the registration of the rights of the applicants and
the first
respondent: This according to the third and fifth respondents. Then
and then only can the Servitude of habitation be
registered in the
name of the two applicants and the first respondent.
2.
All three
litigants lack
locus
standi
for
the remedy claimed
in
casu
.
Counsel for the first respondent was correct to point out that
Habitatio
is a form of personal servitude recognized as such in our law. It
creates a real right in favor of a person over a; in this instance,
residence or dwelling. The holder of the personal servitude acquires
a personal claim to registration of the servitude.
3.
The
argument and contention by counsel for the first respondent referred
to above confirms that the first respondent has taken illegal
occupancy of the residence. He only has a right to registration of
the right and only thereafter can he enforce the right over
the other
title holders and third parties to habitation.
4.
All three
litigants lack
locus
standi
to
organize the maintenance of the property since the Waganella Trust,
apparently the bare dominium owner, bears the responsibility
as for
now.
[16]
The first respondent is the cause of the litigation. That said; the
erroneous litigation was
brought by the applicants. They will each
have to carry their own costs. The rest of the respondents did not
join and/or oppose
the motion.
[17]
ORDER
1.
The prayers as
per the Notice of Motion are dismissed.
2.
Each of the
two applicants and the first respondent to carry their own costs.
M
OPPERMAN, J
APPEARANCES
FOR
THE APPLICANTS
ADVOCATE
GSJ VAN RENSBURG
FREE
STATE SOCIETY OF ADVOCATES
051
430 3567
WYNAND
BOTHA
DU
RANDT & LOUW ATTORNEYS
25
President Steyn Street
KROONSTAD
C/O
PHATSHOANE HENNEY
INCORPORATED
35
Markgraaff Street
BLOEMFONTEIN
051
400 4022
EMAIL:
japiek@phinc.co.za
Ref:
J Kruger
FOR
THE FIRST RESPONDENT
ADVOCATE HJ VAN DER MERWE
FREE
STATE SOCIETY OF ADVOCATES
051
430 3567
DJ
ESTERHUYSE
ESTERHUYSE
ATTORNEYS
71
Oranje Street
KROONSTAD
C/O
BADENHORST ATTORNEYS
PHH
BADENHORST
15
Groenvlei Avenue
GROENVLEI
BLOEMFONTEIN
051
436 0886
EMAIL:
pieter@badenhorst.law
Ref:
PHH BADENHORST/EST3/0002
[1]
“
3.7.1.7
Dat al my kinders anders as ANDRIES JACOBUS MARIUS WESSELS (Junior)
en JACOB JOHANNES WESSELS na die afsterwe van my eggenote
SONJA
HESTERIA WESSELS volle en onbeperkte verblyfsreg sal geniet oor die
eiendom na verwys in klousule 3.1.4 asook volle beskikkingsreg
sal
geniet oor die huisinhoud daarvan welke regte sal voorduur tot en
met die afsterwe van elk sodanige kind.”
[2]
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.
[3]
4405
2021,
CA
NOOME AO v LJ BOTHA NO AO
on 23 May 2022.
[4]
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.
[5]
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.