Jacobs and Others v Baumann NO and Others (126/08) [2009] ZASCA 43; 2009 (5) SA 432 (SCA) ; [2009] 3 All SA 398 (SCA) (8 May 2009)

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Jacobs and Others v Baumann NO and Others (126/08) [2009] ZASCA 43; 2009 (5) SA 432 (SCA) ; [2009] 3 All SA 398 (SCA) (8 May 2009)

Links to summary

THE SUPREME
COURT OF APPEAL
OF SOUTH AFRICA
No
Case number: 126/08
In the matter between:
T
ABEA
JACOBS
First Appellant
CLIFFORD
JACOBS Second
Appellant
TABIA
INVESTMENT HOLD
INGS CC
Third Appellant
and
HERRN
SEBAS
TIEN BAUMANN NO
First Respondent
SAMUEL SPYCHER

Second Respondent JOHANNES SPYCHER

Third Respondent
RAHEL
SPYCHER Fourth
Respondent
THERESE
SPYCHER Fifth
Respondent
DAVID
SPYCHER
Sixth Respondent
Neutral citation:
Jacobs v
Baumann NO
(126/08)
[2009] ZASCA 43
(8 May 2009)
CORAM: MPATI P, LEWIS, VAN HEERDEN, JAFTA et MAYA JJA
HEARD: 5 March 2009
DELIVERED: 8 May 2009
Summary: Whether summons issued in an action, launched
by an executor of a deceased estate subsequently found to have been
unlawfully
appointed, a nullity – whether substitution of executor
having effect of adding a new party to the action and prejudicing to
the appellants.
_____________________________________________________________
ORDER
_____________________________________________________________
On appeal from:
Cape
Provincial Division (Bozalek J sitting as court of first instance)
The appeal is dismissed with costs including those
occasioned by the employment of two counsel.
JUDGMENT
MAYA JA (MPATI P, LEWIS, VAN HEERDEN, JAFTA JJA
concurring):
[1] This appeal is against a judgment of the Cape High
Court (Bozalek J) which upheld the respondents’ application for the
substitution
of the first respondent, Mr Sebastien Baumann NO
(Baumann), as ‘representative of the heirs’ of a deceased estate
and for the
joinder of the sixth respondent, one of such heirs, in
action proceedings instituted by the second to fifth respondents (the
respondents)
against the appellants. The appeal is with the leave of
the court below.
[2] The essential facts may be briefly stated. The
respondents are Swiss nationals. The second to fourth and the sixth
respondents
are the children of Mr Hans Rudolph Spycher (the
deceased), also a Swiss national until his death in Switzerland on 3
February
2004. The fifth respondent is his widow and the first
appellant is his daughter. All are heirs to his estate in terms of a
will
dated 8 November 1995. The first and second appellants are
married to each other and reside in South Africa. They were members
of the third appellant, a close corporation, at the material time.
[3] The real bone of contention between the parties is
a loan of CHF 600 000 (six hundred thousand Swiss francs) which
the
deceased granted the third appellant nearly 21 years ago, on 2
December 1988. The first appellant represented the third appellant
in
the transaction. The loan was to be repaid with interest over a
ten-year period from the time of its grant, but on the deceased’s

death 15 years later, more than the capital sum originally advanced
remained owing. The deceased had recorded the indebtedness
in a
codicil to his will executed on 30 March 2001.
1
[4] It appears that the non-payment of the loan became
a very sore point for the respondents as it adversely impacted on the
administration
of immovable property in the deceased estate, to the
extent that there was a looming threat of a sale in execution. As a
result,
relations between the first appellant and the respondents
soured. The respondents consequently had a Mr Wirz appointed as
‘representative
of the heirs’, apparently a Swiss equivalent of
an executor of a deceased estate, by a Swiss district court on 5
December 2004.
On 29 December 2004 they obtained another order
(headed ‘Correction of the appointment dated 15 December 2004’)
from the same
court, changing Wirz’s initial appointment to that of
‘administrator of the estate’. Both orders were obtained without
notice
to their co-heir, the first appellant, apparently in breach of
the relevant Swiss law.
[5] On 1 February 2005, the respondents instituted an
action against the appellants in the Cape High Court for the
repayment of
the loan and ancillary relief. Wirz was also cited
(reluctantly so it seems, but nonetheless cited) as the first
plaintiff in these
proceedings in his nominal capacity as ‘trustee’
of the deceased estate. In response to the action, the appellants
entered
appearance to defend and fired their first salvo by
successfully appealing Wirz’s appointment in Switzerland. They
obtained an
order from a Swiss Canton Court on 25 April 2005 setting
the appointment aside, having earlier obtained an interim order, on
28 February
2005, effectively interdicting Wirz from acting
either as ‘representative of the heirs’ or ‘administrator of
the estate’.
The view of the Canton Court was that the magistrate’s
failure to grant the first appellant a hearing or arrange
negotiations
between the parties had seriously infringed her
procedural rights. The matter was accordingly remitted to the
district court for
reconsideration.
[6] Thereafter, on 21 September 2005, Baumann, a Swiss
attorney specializing in inheritance law, was appointed as the
‘representative
of the heirs’. The appellants sought to challenge
this appointment too, but failed. After certain preliminary
processes, including
communication with the appellants, Baumann
approved the pending action. The respondents then attempted to
substitute him for Wirz
in the action and to join the sixth
respondent, who had been erroneously omitted, as a plaintiff. It is
the appellants’ opposition
to these proceedings that has brought
the parties this far.
[7] In the court below, as here, the appellants
contended in the main that a substitution of the executor was
impermissible because
(a) the summons in the action was a nullity as
there was no duly appointed executor when it was issued and Wirz
lacked authorisation
to litigate on behalf of the deceased estate;
and (b) the running of prescription in respect of the repayment of
the loan had thus
not been interrupted by the issue of summons and,
as Baumann would become plaintiff
nunc pro
tunc
,
allowing
the substitution would prejudicially deprive them of the opportunity
of raising prescription as a defence.
[8] The court below found,
inter
alia
, that the issue of prescription was not
relevant as it had not been sufficiently pleaded or dealt with in the
papers and that the
key considerations were whether the summons was a
nullity and whether the appellants would suffer any prejudice if the
substitution
– the sixth respondent’s joinder was pegged on the
success or otherwise of the substitution – was allowed. The court
then
held that the summons was not a nullity and that substitution
would not change the essential nature of the action because the heirs

always intended to cite, as a party to the action, the administrator
or trustee of the deceased estate, which Wirz was when the
action was
instituted, and that it remained open to the appellants to raise any
defence they wished in the progression of the action.
[9] In argument before us, the respondents challenged
the appealability of the judgment of the court below arguing that
leave to
amend a pleading, such as was granted, is interlocutory and
does not have the effect of disposing of at least a substantial
portion
of the relief claimed in the action. I do not agree. It is
trite that, generally speaking, a judgment or order is susceptible to

appeal if it is (a) final in effect, ie unalterable by the court
which made it; (b) definitive of the rights of the parties in
that it
grants definitive and distinct relief; and (c) dispositive of at
least a substantial portion of the relief claimed in the
main
proceedings.
2
Therefore, a court determining whether or not an order is final
considers not only its form but also, and predominantly, its effect.
3
An order may not possess all three attributes, but will nonetheless
be appealable if it has final jurisdictional effect
4
or is ‘such as to “dispose of any issue or any portion of the
issue in the main action or suit” or … “irreparably anticipates

or precludes some of the relief which would or might be given at the
hearing” ’.
5
[10] In this case, if the appeal succeeds, the validity
of the summons, which is crucial for determining whether or not the
amendment
of the particulars of claim is to be allowed and would
obviously impact on the defence of prescription if raised, will not
be reconsidered
at the trial. And if it is, it will not be on the
same facts. This, in my view, renders the judgment of the court below
final and
susceptible to appeal, inasmuch as the effect of
substituting an executor of a deceased estate for the deceased in
proceedings
is final regarding whether the summons issued in the
deceased’s name is valid even though issued in the name of a
non-existent
party.
6
[11] Turning to the merits of the appeal, the issues
remain those argued in the court below as indicated in paragraph 7
above.
In weighing up the parties’ submissions, the first question
to be considered, as correctly observed by the court below, is the

role of a ‘representative of heirs’ or, as the respondents termed
it in their particulars of claim, a ‘trustee’ of a deceased

estate in the context of Swiss law. Questions of foreign law are
questions of fact in our courts and, although judicial notice
of the
law of a foreign state may be taken under
s 1(1)
of the
Law of
Evidence Amendment Act 45 of 1988
, this may only be done in so far as
such law can be ascertained readily and with sufficient certainty.
7
[12] The difficulty here is that no evidence was led in
this regard and the only relevant material available on record are
the
two judgments of the Swiss Canton Court, translated from Swiss
German to English, in the proceedings challenging Wirz’s and
Baumann’s
appointments as ‘representative of the heirs’.
Regrettably, even though these documents allude to some relevant
aspects of
Swiss statutory law, little can be gleaned from them
because of the poor quality of the translation. The language used is
far from
clear and, on various occasions, the translator recorded her
difficulty stating that she ‘presumed’ the meaning of some of the

words from the general context of the documents as she could not
trace them in any dictionaries. This renders the translated documents

unreliable.
[13] In that case, it must be presumed that Swiss law
is the same as South African law on this aspect.
8
The rule in our law is that the only proper person to litigate on
behalf of a deceased estate, in the vindication of its assets,
is its
executor even to the exclusion of the beneficiaries in the estate.
9
This means that a Swiss equivalent of an executor of the deceased
estate was required to initiate and conduct the action instituted
on
1 February 2005. It must then be considered whether Wirz’s
appointment as administrator of the estate and involvement in the

action meets this requirement.
[14] As already indicated, the thrust of the
appellants’ case was that the summons instituting the action in
February 2005 was
invalid, and the substitution requested
consequently impermissible, as there was no legally appointed
executor with authority to
litigate on the estate’s behalf until
Baumann’s appointment in September 2005. To fortify this
contention, they sought to draw
a distinction between two forms of
action – that taken by an executor whose appointment is lawful but
is subsequently revoked,
and that of an executor whose appointment is
unlawful. They then argued that the former type of action is valid
until the appointment
is set aside, but that the latter is void
ab
initio
and that Wirz’s appointment and
institution of the action fell into the latter category.
[15] This seems to me a proper distinction to make. The
crisp question it raises is whether Wirz’s appointment was lawful.
If
it was, then the institution of the action on 1 February 2005 was
proper as his appointment was set aside after this date. If it
was
unlawful, then the summons is a nullity which cannot be amended.
[16] In support of their argument the appellants
referred us, inter alia, to the decisions of
Brand
NO v Volkskas Bpk & another
10
and
Mngadi NO v Ntuli
& others
.
11
In the
Brand
case a
document purporting to be the last will and testament of the deceased
was lodged with the Master, who duly appointed an
executor in terms
thereof. In accordance with his powers, the executor completed the
administration of the estate, filed the relevant
accounts and handed
the residue of the estate to an administrator appointed in terms of
the will to administer it in trust. Thereafter,
another purported
will executed after the first document and revoking any other will
was found. It was lodged with the Master who
accepted it as valid and
recalled the letters of administration he had previously issued in
terms of the earlier document. The
new executor brought proceedings
for an order directing the first executor to hand over the assets of
the estate and render to
him an account of its dealings therewith.
The court refused to hold that the revocation of the first executor’s
appointment rendered
the administration of the estate conducted under
the first will a nullity and reasoned that those actions were legally
performed
under the authority of the Master given in accordance with
the law.
[17]
Mngadi
,
on the other hand, lies on the different side of the divide. There, a
deceased black man who had been twice married executed a
will in
which his first wife, the plaintiff, was appointed executrix of his
estate. He did not revoke the will on his second marriage
and, after
his death, the Master accepted and registered it in that form.
Thereafter however, the second wife, the first defendant,
was
appointed by an additional Bantu Affairs Commissioner as
representative of the deceased estate in terms of
regulation 4(1)
of
the Regulations for the Administration and Distribution of Estates of
Deceased Bantu. Both were unaware of the existence of
the will. The
second wife then sold and transferred certain immovable property in
the estate to the second defendant who, in turn,
sold and transferred
it to the third defendant. The first wife brought a vindicatory
action against the defendants and the Registrar
of Deeds.
[18] The court held that since the power of appointment
conferred upon the Commissioner by the Regulations existed only in
relation
to cases where the deceased had died intestate, if the
Commissioner purported to exercise that power in respect of a
deceased who
had left a valid will, as in the present case, he would
not be mistakenly exercising a power he possessed, but would be
purportedly
exercising a power he did not have at all in terms of the
relevant statute. The appointment of the second wife was thus found
to
be void
ab initio
and
the subsequent sale transactions invalid as the ownership of the
properties remained vested in the estate of which the plaintiff
was
the duly appointed representative.
[19] Both judgments are, in my respectful view, sound.
Whither then falls the present case? I am unable to see the
similarity between
Wirz’s appointment by a competent court of law
and the
Mngadi
facts
pressed upon us in argument on the appellants’ behalf. To my mind,
the absence of the very jurisdictional fact in
Mngadi
giving rise to the exercise of the Commissioner’s power to appoint
a representative of a deceased’s estate – the non-existence
of a
valid will –
must
surely distinguish the two cases.
[20] The only flaw found by the appeal court in Wirz’s
appointment was merely procedural. That cannot detract from the
court’s
power to adjudicate the application for his appointment and
grant an order. Such order would obviously stand until such time as

it were properly set aside. In the words of Lord Radcliffe in
Smith
v East Elloe Rural District Council
:
12
‘An order, even if not made in
good faith, is
still an act capable of legal consequences. It bears no brand of
invalidity on its forehead. Unless the necessary
proceedings are
taken at law to establish the cause of invalidity and to get it
quashed or otherwise upset, it will remain as effective
for its
ostensible purpose as the most impeccable of orders.’
13
Quite clearly, any steps taken by Wirz on the authority
of the court order appointing him as administrator of the estate
before
his appointment was restricted by the interdict of 28 February
2005 and finally withdrawn on 25 April 2005 are not unlawful.
14
The summons issued in his name on behalf of the deceased estate is,
therefore, not a nullity.
[21] I see no further bar to the amendment application.
Wirz purported to sue on the estate’s behalf and the involvement of
the
respondents in the suit does not change its representative
nature. The effect of the substitution is not to introduce a new
party,
15
but merely to replace an irregularly appointed executor with the
proper one. The possibility that the appellants may suffer prejudice

by being deprived of the opportunity to plead prescription simply
does not arise.
16
This, in my view, is the end of the matter.
[22] It was asked on the appellants’ behalf that, if
the appeal fails, the costs order made by the court below should be
altered,
as the respondents sought an indulgence by seeking to amend
their particulars of claim and were thus not entitled to costs. It
was also submitted that the appellants’ opposition to the
application was not unreasonable in view of the uncertainty relating

to Swiss law. However, I am not persuaded that there is any good
reason to interfere with the discretion of the court below in
the
circumstances of this case. I am thus not amenable to accede to this
request.
[23] The appeal is dismissed with costs including those
occasioned by the employment of two counsel.
_________________
MML MAYA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: A G Binns-Ward SC
M
Blumberg
Instructed
by
Bisset
Boehmke McBlain, Cape Town
Webbers,
Bloemfontein
For
Respondent: F S G Sievers
Instructed
by
Luitingh
& Associates, Rondebosch
McIntyre
& Van der Post, Bloemfontein
1
The facts relating to the loan are alleged in the
respondents’ particulars of claim to which the appellants are yet
to plead,
but it does not appear from the papers filed in the
interlocutory proceedings under challenge that they are disputed.
2
Zweni v Minister of Law and Order
1993 (1) SA 523
(A).
3
South African Motor Industry Employers’
Association v South African Bank of Athens Ltd
1980 (3) SA 91
(A) at 96H;
Zweni
at
532H-I.
4
Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at 10E-11B;
Phillips v National Director of
Public Prosecutions
2003 (6) SA 447
(SCA) paras 18 and 19;
Metlika Trading Ltd v Commissioner for SARS
[2004] 4 All SA
410
(SCA) para 24.
5
Pretoria Garrison Institutes v Danish Variety
Products (Pty) Ltd
1948 (1) SA 839
(A)
at 870;
Cronshaw v Coin Security Group
(Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(A) at
690E-F.
6
Van Heerden v Du Plessis
1969
(3) SA 298
(O) at 303B-F.
7
Schlesinger v Commissioner for Inland Revenue
1964 (3) SA 389
(A) at 396G;
Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
[1998] ZASCA 44
;
1998
(3) SA 938
(SCA) at 954B-E;
MV Heavy
Metal Belfry Marine Ltd v Palm Base Maritime
SDN
BHD
1999 (3) SA 1083
(SCA) para 65;
MV
Alam Tenggiri Golden Seabird Maritime Inc v Alam Tenggiri SDN BHD
2001 (4) SA 1329
(SCA) para 21;
8
Schapiro v Schapiro
1904
TS 673
at 677;
Rogaly v General Imports
(Pty) Ltd
1948 (1) SA 1216
(C) at
1227-1230;
The MV Sea Joy Owners of the
Cargo Lately Laden On Board; The MV Sea Joy v The MV Sea Joy
1998
(1) SA 487
(C) at 493D.
9
Boland Bank Ltd v Roup, Wacks, Kaminer &
Kriger
1989 (3) SA 912
(C) at 914G-H;
Asmal v Asmal
1991 (4) SA 262
(N) at 264G-265D;
Gross
v Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
(A).
10
1959 (1) SA 494
(T).
11
1981 (3) SA 478
(D).
12
[1956] UKHL 2
;
[1956] 1 All ER 855
at 871G-H.
13
See also
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004
(6) SA 222
(SCA) paras 27-31.
14
Brand NO v Volkskas Bpk
1959
(1) SA 494
(T) at 498F-G;
Mvusi v Mvusi
NO
1995 (4) SA 994
(TkS) at 1000F-G.
15
Sentrachem Ltd v Prinsloo
1997
(2) SA 1
(A) at 15H-16C.
16
Boland Bank Ltd v Roup, Wacks, Kaminer &
Kriger
1989 (3) SA 912
(C) at 914H-I.