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[2017] ZASCA 19
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Freidrich and Others v Smit NO and Others (1028/2015) [2017] ZASCA 19; 2017 (4) SA 144 (SCA) (23 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1028/2015
In
the matter between:
MARTHINUS
VAN ROOYEN FRIEDRICH
FIRST APPELLANT
MARELIZE
FRIEDRICH
SECOND APPELLANT
NICOLENE
FRIEDRICH
THIRD APPELLANT
and
ADRIAAN
LOUW SMIT N O
FIRST RESPONDENT
IN
HIS CAPACITY AS THE NOMINEE OF
STABILITAS
BOARD OF EXECUTORS (PTY) LTD
SUSANNA
MARIA FRIEDRICH
SECOND RESPONDENT
THE
MASTER OF THE NORTH GAUTENG
THIRD RESPONDENT
HIGH
COURT, PRETORIA
Neutral
Citation:
Van
Rooyen Friedrich & others v Louw Smit NO & others
1028/2015
[2017] ZASCA 19
(23 March 2017)
Coram:
Tshiqi,
Petse and Mbha JJA and Fourie and Molemela AJJA
Heard:
02 March 2017
Delivered:
23 March
2017
Summary:
Maintenance of surviving
spouse : ss 2 and 3 of the Maintenance of Surviving Spouses Act 27 of
1990 :
requisites
of
Act not satisfied : special leave to appeal in terms of
s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
: appeal upheld.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Murphy, Molopa-Sethosa and
Tlhapi JJ sitting as court of appeal):
1
The appeal is upheld and the second respondent is ordered to pay the
costs, including the
costs of the condonation application brought by
the second respondent.
2
The order of the full court is set aside and in its stead is
substituted:
‘
2.1
The appeal is upheld with costs and the second respondent is ordered
to pay these costs.
2.2
The order of the court a quo is set aside and substituted with the
following –
2.2.1
“The decision of the Master of the high court dated 12 July
2010 is set aside and substituted as follows:
(a)
The objection lodged against the Liquidation and Distribution account
in the estate of the late Maartin
Rudolf Friedrich is sustained.
(b)
The executor of the estate of the late Maartin Rudolf Friedrich is
ordered to amend the Liquidation
and Distribution account by removing
the claim of Susanna Maria Friedrich in toto.”
2.3
The second defendant is ordered to pay the costs of the action,
including the reserved costs of the application
issued by the
plaintiffs under the same case number on 11 August 2010.
2.4
The second defendant’s counterclaim is dismissed with costs.’
JUDGMENT
Tshiqi
JA (Petse and Mbha JJA and Fourie and Molemela AJJA concurring)
[1]
This is an
application for special leave to appeal referred for oral argument in
terms of
s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
, and if granted, the
determination of the appeal itself. At the hearing of the matter,
counsel for the second respondent, the only
respondent who opposed
the appeal, conceded that the matter deserved the attention of this
court and special leave to appeal was
granted. The parties proceeded
to argue the merits of the appeal.
[2]
The issues
to be determined arise from the estate of the late Maartin Rudolph
Friedrich (the deceased). The appellants are Mr Marthinus
van Rooyen
Friedrich, Miss Marelize Friedrich, and Miss Nicolene Friedrich, all
adult children of the deceased from a previous
marriage. The second
respondent, Mrs Susanna Maria Friedrich was married to the deceased
on 26 April 2003
out
of community of property without accrual
,
and their marriage still subsisted at the time of his death in
September 2006. The deceased left a will in which he appointed
the
appellants as his only heirs. He nominated the Stabilitas Board of
Executors (Pty) Ltd to be his executors and it in turn nominated
the
first respondent, Mr Adriaan Louw Smit, in terms of s 16 of the
Administration of Estates Act 66 of 1965 (the Estates Act),
as the
Executor of the deceased’s estate.
[3]
In November
2006 Mrs Friedrich filed a claim with the Executor against the
deceased’s estate in terms of s 2 of Maintenance
of Surviving
Spouses Act 27 of 1990 (the Surviving Spouses Act) in the amount of
R8 454 760, which she subsequently reduced to
R 4 468 519. 24.
[4]
The
Executor allowed Mrs Friedrich’s claim in the amount of R4 468
519.24 and included it in the Liquidation and Distribution
account,
(the L and D account). It is common cause that after the amount
allocated to Mrs Friedrich in the L and D account, and
the other
claims of the creditors had been allowed, the remaining amount for
distribution among the appellants would be R886 785.
[5]
The
appellants, through their attorneys, lodged an objection to the L and
D account with the Master of the High Court, Pretoria
stating that
Mrs Friedrich could only claim reasonable maintenance if she could
not support herself through her own income and
means. They alleged:
‘
3.1
Mrs Friedrich is currently employed as a bookkeeper and earns an
income;
3.2
Mrs Friedrich has already received payment in the amount of R139
293.46 for a life insurance policy of which she was the beneficiary;
3.3
On 29 September 2008 Mrs Friedrich bought an Erf in Selcourt
Extension 3 for the amount of R695 000 which property was registered
[in] her name on 10 February 2009;
3.4
Mrs Friedrich is currently 46 years of age and was 43 years old at
the time of Mr Friedrich’s demise. She is still able
to learn
new skills to enable herself to earn a higher income.
4.
In light of the above, it is clear that Mrs Friedrich does not have a
factual basis for claiming maintenance from Mr Friedrich’s
estate.
5.
In as much as the claim for maintenance will be allowed, our clients
object to the magnitude thereof:
5.1
Mr and Mrs Friedrich were married during 2003 and the marriage lasted
a mere 3 years until the demise of Mr Friedrich. The short
duration
of the marriage does not justify the amount claimed;
5.2
The amount claimed by Mrs Friedrich is disproportionate to the amount
payable to other beneficiaries. The amount of R4 468 519.24
claimed
is more than half the value of the assets being R7 013 658.00;
5.3
Subsequent to Mr Friedrich’s demise, Mrs Friedrich entered into
a relationship with a Mr Fourie and has been in a permanent
life
partnership with him for about a year. Our clients believe that her
only reason for not marrying Mr Fourie is the fact that
such marriage
would result in Mrs Friedrich losing any possible claim for
maintenance against Mr Friedrich’s estate.
6.
It is our instructions to request that the executor of the estate
late M R Friedrich remove Mrs Friedrich’s claim from
the
Liquidation and Distribution Account, alternatively the claim should
be considerably reduced . . . .’
[6]
On 12 July
2010 the Master responded :
‘
.
. . .Decision
1.
The objection regarding the maintenance claim lodged against the
Liquidation
and Distribution Account in the estate of the late
Maartin Rudolph Friedrich is herewith sustained.
2.
The quantum of the maintenance claim may either be agreed upon by
both parties
or the relevant court should be approached to determine
same . . . .’
In
para 7 the Master concluded
:
‘
Having
regard to the above mentioned factors and the Actuary report it will
be difficult for the Master to determine the quantum
of the claim,
the writer respectfully submits that the parties should approach the
relevant court to determine the quantum of the
maintenance claim,
unless both parties settle on the amount . . . .’
[7]
The
appellants approached the Gauteng Division of the High Court,
Pretoria and brought an application in terms of s 35(10) of the
Estates Act for an order setting aside the Master’s findings
and substituting it with an order sustaining the objection.
They also
prayed for an order that the Executor of the estate of Mr Friedrich
amend the L and D account by removing the claim of
Mrs Friedrich in
toto. Mrs Friedrich brought a counter-application seeking an order
setting aside the Master’s finding that
the objection be
sustained. She also prayed for an order that the Executor pay her the
amount of R4 468 519.24 awarded to her in
accordance with the
Executor’s findings, and that the Master be ordered to accept
the L and D account. The high court ordered
the application and
counter-application to be referred to trial, with the notice of
motion to stand as simple summons, and the
answering affidavit as a
notice of intention to defend, with costs of the application to be
reserved for the trial court.
[8]
The
appellants filed their declaration in compliance with the court
order. They challenged the correctness of the Master’s
decision
mainly on the basis that Mrs Friedrich was not entitled to any
maintenance. They also sought an order for the amendment
of the L and
D account by the removal of Mrs Friedrich’s claim. Mrs
Friedrich filed a plea in which she alleged that she
was entitled to
maintenance as claimed and awarded to her by the Executor in the
lesser amount of R4 468 519.24. She simultaneously
filed a
counterclaim seeking an order against the Executor and the Master to
the effect that the Executor be ordered to pay the
amount awarded to
her. She also sought an order to the effect that the finding by the
Master sustaining the objection by the appellants
be set aside.
[9]
The trial
proceeded before Pretorius J, who ruled that Mrs Friedrich had a duty
to begin since she was the one claiming maintenance.
She testified,
and stated that she was still married to the deceased at the time of
his death, and that she had separated from
him for three to eight
weeks during the course of the marriage but had again reconciled with
him before his death. She confirmed
that she was 50 years old, was a
qualified estate agent but that she was at the time unemployed
because
she had given up this
career
in 2004 at the deceased’s request. She stated that apart from
the house she was occupying, which had not been transferred
into her
name, she had also received an amount of R3 million from the
Executor. This amount was according to her, proceeds of the
sale of a
house that was sold after the deceased’s death. She said that
she used approximately R1.9 million of the amount
to pay for a house
in the amount of R720 000, that she incurred expenses in the amount
of R350 000 concerning a biltong business
which she had to close, and
also incurred miscellaneous expenses in the amount of R400 000. She
could not account for the balance
in the amount of approximately R1.4
million.
[10]
Mrs
Friedrich also sought to place reliance on an actuarial report
prepared by Quindiem Consulting. This report had been sent to
the
Executor and the Master and had concluded that ‘the total value
of the expenses that she will incur over her expected
lifetime to
maintain her current standard of living is R8.45 million’. She
did not call any further witnesses and the appellants
closed their
case without leading any evidence. In its judgment the trial court
said at para 25:
‘
Botha
v Botha
2009(3) SA 89 (W)
dealt with maintenance after divorce and the plaintiff in that matter
gave evidence regarding her financial position
and needs for
maintenance, contrary to the present case where no evidence in this
regard was presented . . . .’
It
continued at para 26:
‘
In
the present case the second defendant chose not to give evidence as
to how the amount of R4 468 519.24 was calculated
and why
it was necessary for her to receive 83% of the estate after three
years of marriage. The only evidence was a “valuation
of claim
against the estate of the deceased spouse” by Quindiem
Consulting. This cannot be considered as evidence as it is
hearsay
evidence. Consequently I cannot use it to calculate any maintenance
for the second respondent, should I find that she is
entitled to
maintenance.’
The
court then said:
‘
.
. . .
there is no
evidence whereby the court can find the “reasonable
maintenance” which the second defendant [Mrs Frederich]
would
be entitled to.’
However,
despite the finding by the trial court that there was no evidence
upon which the court could find ‘reasonable maintenance
which
the second defendant [Mrs Friederich] would be entitled to’ it
surprisingly concluded:
‘
I
find that the second defendant [Mrs Friedrich] is entitled to
reasonable maintenance as set out in Act 27 of 1990, although I
cannot make a determination as to the amount due to the paucity of
information before me.’
[11]
The
appellants appealed to the Full Court of the Gauteng Division,
Pretoria. That court also echoed the views of the trial court
to the
effect that Mrs Friedrich did not prove that she was entitled to
maintenance. It said:
‘
At
the trial in the court a quo, the only evidence led was that of the
second respondent [Mrs Friedrich]. The evidence tendered
was in
relation to her counterclaim. …Her evidence did not
meaningfully address her need for maintenance or the factors
referred
to in section 3 of the MMS Act. Apart from the actuarial report,
there was no evidence regarding her on-going expenses
or pertinently
addressing the issues raised by the Master. There was much ado about
the manner in which she had used an amount
of R3 million paid to her
by the executor, possibly irregular in light of the objection.
Although perhaps not without consequence,
this evidence is of limited
relevance to the issues of whether the second respondent is entitled
to maintenance and the amount
to which she is entitled. The evidence
indicates that the second respondent has not been conscientious in
her efforts to seek employment.
However, our view in relation to the
counterclaim, set out below, means that there is no need to evaluate
this evidence in any
detail.’
[12]
Having made
these observations, the court concluded:
‘
This
court is similarly of the view on the inchoate evidence that the
second respondent is entitled to reasonable maintenance from
the
estate. The evidence establishes that the second respondent, a middle
aged woman with some prospect of employment, though limited
by her
relative lack of skills and experience, as well as her
non-participation in the labour market for some years, is at the
very
least entitled to some level of maintenance from the estate. She gave
up her career after marrying the deceased, and after
his death found
herself in precarious circumstances. The fact that she appears to
have been irresponsible with the amount which
the executor may have
irregularly given her is not relevant to her actual entitlement. That
being the case, the Master and the
court a quo were right in their
effective conclusions that only quantum needed to be determined.’
[13]
The Full
Court concluded that Mrs Friedrich was entitled to reasonable
maintenance. It made an order setting aside the order of
the trial
court, and substituted it with an order that the decision of the
Master be reviewed and set aside; that the matter be
remitted to the
Master for the purpose of determining the quantum of maintenance
payable to Mrs Friedrich; and that her counterclaim
be dismissed.
[14]
Both the
trial court and the full court erred in their approach to the matter.
The power conferred by s 35(10) of the Estates Act
on the Court is,
as the court a quo stated, an appeal in the wide sense in that ‘the
Court can consider the matter afresh
and may make any order it deems
fit’. (See
Meyer
v Iscor Pension Fund
2003 (2) SA 715
(SCA) at 725I.) The decision of the Master referring
the matter to court for the determination of quantum did not mean
that the
court was confined to the determination of the quantum. It
had to apply its mind to the matter afresh. Once it was found
that Mrs Friedrich did not lead any evidence to show that she was
entitled to reasonable maintenance, that should have been the
end of
the matter. It is not clear what caused the two courts below, to
suddenly somersault and make an order that Mrs Friedrich
was entitled
to reasonable maintenance. During argument in this court Mrs
Friedrich’s counsel was constrained to concede
that there was
no basis for such an order as no evidence had been led in that
regard.
[15]
In terms of
our common law, a surviving spouse has no claim against the estate of
the deceased spouse merely by reason of the marriage.
(See
Botha
v Botha
2009 (3) SA 89
(W) para 32.) Section 2 of the Surviving Spouses Act
provides that if a marriage is dissolved by death, the surviving
spouse shall
have a claim against the deceased’s estate for the
provision of reasonable maintenance until death or remarriage, to the
extent that the surviving spouse is not able to provide for his or
her own maintenance, from his or her own means and earnings.
The
claim should be lodged with the executor of the Estate and it is
required to be dealt with in terms of the Estates Act. (See
also s
2(3)
(a)
of the Surviving Spouses Act.)
[16]
Section 3
of the Surviving Spouses Act provides:
‘
Determination
of reasonable maintenance needs
In
the determination of the reasonable needs of the survivor the
following factors shall be taken into account in addition to any
other factor which should be taken into account:
a)
The amount in the estate of the deceased spouse available for
distribution to heirs and legatees;
b)
the existing and expected means, earning capacity, financial needs
and obligations of the survivor and the subsistence of the
marriage;
and
c)
the standard of living of the survivor during the subsistence of the
marriage and his age at the death of the deceased spouse.’
[17]
The
provisions of ss 2 and 3 of the Surviving Spouses Act specifically
provide that the surviving spouse is only entitled to reasonable
maintenance, and that the estate of the deceased is liable only to
the extent to which the surviving spouse is not able to provide
for
it from his or her own means and earnings. Reasonable maintenance
must exclude extravagant demands of maintenance and a surviving
spouse who cannot show that he or she is not able to maintain him or
herself is not eligible for maintenance from the deceased’s
estate. In order to meet the threshold set by the Surviving Spouses
Act, Mrs Friedrich was required to show that she was in need
of
reasonable maintenance and was unable to maintain herself. In this
determination, the factors listed in s 3 of the Surviving
Spouses Act
should be taken into account but as the Act stipulates, these are not
exhaustive: any other factor may be taken into
account.
[18]
Mrs
Friedrich’s evidence failed to address the factors listed in ss
3
(b)
and
(c)
of the Surviving Spouses Act. She did not testify that she could not
make ends meet and was therefore in need of maintenance. She
did not
provide any documentary proof to show her expenditure, accounts and
bank records. The trial court was kept in the dark
about her
lifestyle and standard of living during the subsistence of the
marriage and after the death of the deceased.
[19]
Mrs
Friedrich’s reasons why she was unemployed were unconvincing.
In trying to explain why she could not resume her career
as an estate
agent, she stated that it was no longer safe to do so because she was
hijacked in the past whilst she was working
in that capacity. She has
not worked since the deceased’s death and she stated that she
applied for approximately 10-12 jobs.
Incredibly, however, not a
single one of the job applications was in writing. According to her,
she was unemployable because of
her age, however, no documentary
evidence was provided to show that she had indeed applied for
employment and was turned down.
[20]
She also
offered no explanation on what she meant to do or had done with the
amount of approximately R1.4 million left from the
R3 million she had
received from the executor. There was also no documentary evidence to
substantiate how the amount of R1.9 million
was spent. The report
compiled on her behalf by Quindiem Consulting was, as found by the
trial court, inadmissible hearsay evidence.
[21]
For all
those reasons, Mrs Friedrich did not prove that she was entitled to
reasonable maintenance. It is not necessary to deal
with Mrs
Friedrich’s counterclaim, as it was dismissed by the trial
court and there was no cross appeal to the Full Court.
[22]
Accordingly,
I make the following order:
1
The appeal is upheld and the second respondent is ordered to pay the
costs, including the
costs of the condonation application brought by
the second respondent.
2
The order of the full court is set aside and in its stead is
substituted:
‘
2.1
The appeal is upheld with costs and the second respondent is ordered
to pay these costs.
2.2
The order of the court a quo is set aside and substituted with the
following –
2.2.1
“The decision of the Master of the high court dated 12 July
2010 is set aside and substituted as follows:
(a)
The objection lodged against the Liquidation and Distribution account
in the estate of the late Maartin
Rudolf Friedrich is sustained.
(b)
The executor of the estate of the late Maartin Rudolf Friedrich is
ordered to amend the Liquidation
and Distribution account by removing
the claim of Susanna Maria Friedrich in toto.”
2.3
The second defendant is ordered to pay the costs of the action,
including the reserved costs of the application
issued by the
plaintiffs under the same case number on 11 August 2010.
2.4
The second defendant’s counterclaim is dismissed with costs.’
___________________
ZLL
Tshiqi
Judge
of Appeal
Appearances
For
Appellants:
P
van der Berg SC
Instructed by:
C Bekker &
Associates, Pretoria
Rossouws Attorneys,
Bloemfontein
For
Second Respondent:
C J Hendriks
Instructed by:
Marius Botha Attorneys,
Boksburg
Azaar En Havenga
Attorneys, Bloemfontein