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[2021] ZAGPPHC 271
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P.K v Rorich, Wolmarans and Luderitz Inc and Others (11207/18) [2021] ZAGPPHC 271 (13 April 2021)
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
(GAUTENG DIVISION,
PRETORIA)
CASE
NO. 11207/18
In
the matter between:-
P
K[…]
APPLICANT
and
RORICH,
WOLMARANS & LUDERITZ INC
1
ST
RESPONDENT
NAIDOO
PRISHANIA
N.O.
2
ND
RESPONDENT
THE MASTER OF THE HIGH
COURT,
JOHANNESBURG
3
RD
RESPONDENT
R
E
S[…]
4TH
RESPONDENT
M
K[..]
5
TH
RESPONDENT
N
C
M[…]
6
TH
RESPONDENT
ID. […]
JUDGMENT
VORSTER,
LI Aj
1.
The Applicant applies for an order in the following terms:
“
1.
That the Agreement signed by the Applicant and her deceased husband I
K K[…]
“the Deceased” on the 18
th
of July 2012
not be enforceable against the Applicant and also
in favour
of the Deceased estates.
2
That the st Respondent
is ordered to pay
50%
of the prceeds
of the
sale
•
3
That the Third Respondent be interdicted from approving and
conrfirming the amendment
of the Liquidation and Distribution
Account
under
Estate
Number
[…]
to
the effect that it
should be in accordance to the last Will and Testament of the
Deceased;
4
That, alternatively in the event that the Third Respondent has
already
amended
the
Liquidation
and
Distribution
Account
to
effect the contents of the last Will and Testament, the Applicant is
seeking an order interdicting the First Respondent from
finalising
the Estate of the Deceased in accordance with the contents of the
last Will and Testament of the Deceased;
5.
The Respondents to pay the costs of this Application only if
opposed.”
2.
The Respondent disputes the relief claimed by the Applicant.
The relevant facts of this matter are to a very large extent common
cause between the parties and can be summarized as follows:-
2.1. The
Applicant married I K K[…] on 14
th
of May 1987 in
community of property.
2.2
They had an immovable property which was registered in the name of
the deceased.
2.3 The
Applicant and K[…] divorced on the 25
th
of October
1991. As part of the divorce process an agreement between them was
made an order of Court. In that agreement each party
was entitled to
possession in his or her possession and nothing was said about the
immovable property.
2.4
The Court who heard the divorce action, which was unopposed, allowed
the Plaintiff, K[…], to
amend the written Deed of Settlement
within 14 days of date of the Settlement Agreement being made an
order of Court.
2.5 The
Fourth Respondent alleged that she was married to the deceased on the
25
th
of September 2010 by means of a Customary Marriage.
That marriage is disputed by the Applicant.
2.6 During
July 2010, the Applicant was in hospital after having been injured in
a motor collision. She was approached
by a person (the 10th
Respondent) whom the Applicant presumed was representing the deceased
at the time. She was still in Charlotte
Maxeke Johannesburg Hospital.
The purpose of that visit was to obtain the signature of the
Applicant to the document headed “
Variation Agreement”
and which was signed by the Applicant.
2.7 In
that document the Applicant alienated her 50% of the property to the
deceased.
1.
The
crux
of the dispute between the Applicant and
particularly the 4th Respondent is whether the Variation Agreement,
which admittedly was
signed by the Applicant whilst in hospital, is a
valid document disposing of her 50% undivided share in the immovable
property
registered in the name of the deceased. The Applicant’s
case is that she was indisposed in a hospital after having suffered
severe injuries in a motor collision and she was in the process of
recuperation. For that reason she did not take particular notice
to
the Variation Agreement that was presented to her for signature and
just mechanically signed it. There is no evidence by the
Applicant or
the 4th Respondent that the nature and content of the amendment to
the Settlement Agreement was explained to the Applicant
or that the
Applicant was even told that the agreement is an amendment to the
original Settlement Agreement in the divorce.
2.
Before I deal with the merits of the matter, it is necessary
to refer to a point
in limine
which the 4
th
Respondent raised. That point
in limine
is an invocation of
Section 96
of the
Administration of Estates Act, No 66 of 1965
. That
section provides that the Master may, if needed, approach the Court
to obtain relief in the course of the administration
of deceased
estates. The short answer to this point is that that section does not
exclude the jurisdiction of the Court to adjudicate
on issues and
problems relating to deceased estates. Consequently, this point
in
limine
might fail.
3.
A second point which the 4th Respondent raises is that the
deceased in his last Will disposed of the 50% share in the property
which
according to him had been transferred to him by the Applicant
in terms of the Variation Agreement. The argument is that such is
the
last Will and Testament of the deceased and his disposition of that
50% share in the immovable property overrides any order
a Court may
make setting aside the amendment agreement. This attack is also
untenable. A person can only dispose of his property
and goods in his
last Will and Testament. He cannot dispose of anything belonging to
anybody else. The question is therefore whether
the 50% share in the
undivided share in the property was transferred by the Applicant to
the deceased in terms of the Variation
Agreement during July 2010 or
not.
4.
The Applicant’s case is that she was unaware that the
document which was presented to her for signature was an agreement or
a variation of an existing agreement between her and the deceased.
Her evidence is that she was indisposed to the extent that she
hardly
took notice of what was going on around her and was in no position to
enter into binding agreements of any sort. This evidence
is of course
hotly disputed by the 4
th
Respondent.
5.
It is common cause that the Applicant signed the amendment
agreement during July 2010. The dispute on the evidence must be
approached
by means of an analysis of the relevant evidence to come
to a decision whether there is in fact a material factual dispute
which
precludes a decision on the matter without oral evidence. I am
of the view that the factual dispute whether the Applicant knew and
intended to forfeit her undivided half share in the immovable
property by the signature of the amendment agreement. Is not a real
dispute. It can be resolved without oral evidence, looking purely at
the evidence as a whole. The document was signed by Applicant.
The
4th Respondent Infers that the document was signed with intention to
be bound by the contents thereof .Taking into account
the surrounding
common cause facts that inference does not pass the probability test
for the following reasons: The document is
presented for signature
approximately 10 years after the divorce was finalised. There is no
evidence that the nature and effect
of the document presented to her
for signature was a binding agreement in terms of which she forfeited
her 50% undivided half share
in the immovable property was explained
to her. There is no evidence that the transfer of her share of the
property was ever discussed
with her .
6.
It was never explained to the Applicant what nature and
importance of the document was which was presented to her for
signature.
If that had been the case it would have been a simple
matter for the 4th Respondent to adduce evidence in that regard.
There certainly
would in my mind be a duty to explain to the
Applicant the nature and effect of the document before she signs it.
The simple reason
for that conclusion is that after divorcing the
deceased for 10years the Applicant and the deceased abided by their
initial oral
agreement to leave the immovable property in their joint
ownership. Out of the blue during July 2010 a person comes to the
Applicant
laid up in bed in hospital after a serious motor collision,
present a document to her and which she signed. I have no doubt, had
she been told what the import and effect of the document was, she
would not have signed it. There is no single reason to suspect
why
the Applicant, being the owner of an undivided share in an immovable
property would dispose of it to her erstwhile spouse for
no apparent
reason. On the crucial aspect whether the Applicant knew what she was
signing there is no evidence apart from the evidence
of the Applicant
stating that she was unaware of it. In my view the evidence of the
Applicant about the circumstances in which
the amendment agreement
was signed taken together with the absence of any evidence that the
nature and import of the document was
explained to her before signing
it and the complete improbability that the Applicant would have
disposed of her 50% undivided share
in the property, without any
apparent reason to do so, is in my view conclusive for a finding that
the Applicant succeeded in proving
that she did not sign the said
document with the intention to dispose of her 50% undivided share in
the property. Consequently
in my view the application must succeed.
I
make the following order:
1
That the Agreement signed by the Applicant and her deceased husband I
K K[…] “the
Deceased” on the 18
th
July 2012
is not enforceable against the Applicant and also
not
enforceable
against
the deceased estate of the deceased
2.
That the First Respondent be compelled to pay
to
Applicant 50%
3
That
the Third Respondent be interdicted from approving and corfirming the
amendment of the Liquidation and Distribution Account
under Estate
Number […] to the effect that if should be in accordance to
the last Will and Testament of the Deceased;
4
That,
alternatively in the event that the Third Respondent has already
amended the Liquidation and Distribution Account to effect
the
contents of the last Will and Testament , an Order
interdicting the First Respondent from finalising the Estate
of the Deceased in accordance with the contents of the last Will and
Testament of the Deceased;
5.
The Fourth Respondent is ordered to pay the Applicants costs of
suit.
L I VORSTER, AJ
13 April 2021
Counsel: Applicant
Kenneth Malatji Attorneys
4
th
Res0ndent
S.Jozana