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[2021] ZANCHC 11
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Engelbrecht N.O v Master of the High Court, Kimberly and Others (432/2020) [2021] ZANCHC 11 (8 January 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
432/2020
In
the matter between:
FRANKEL
ENGELBRECHT
N.O.
Applicant
(in
his capacity as executor in the estate of
The
late Hendrik Hermias Spangenberg, Master’s
Reference
453/2010)
and
THE
MASTER
OF THE
HIGH
COURT,
KIMBERLEY
1st
Respondent
CHRISTINA
GERTRUIDA
SPANGENBERG
2
nd
Respondent
ID:
[…]
IZAK
FREDERICK
SPANGENBERG
3
rd
Respondent
ID:
[...]
MARIA
CORNELIA
VAN DER
WESTHUIZEN
4
th
Respondent
ID:
[...]
CHRISTINA
ALETTA
W. LA
COCK
5
th
Respondent
ID:
[...]
Coram:
LEVER AJ
JUDGMENT
LEVER
AJ:
1. The
applicant is the executor in the estate of the late Hendrick Hermias
Spangenberg (the deceased or the testator) who died on the 15 January
2010. The applicant's letters of executorship were issued
on the 29
November 2018. The applicant was not the first executor appointed by
the Master. For present purposes it is not necessary
to go into the
history of the delays in the finalisation of the relevant estate,
suffice it to say that there had been ongoing
disputes around the
interpretation of essentially one provision in the will of the
deceased. It is, in short, as a result of the
ongoing disputes
regarding such interpretation that the applicant approaches this
court for a declaratory order to establish the
proper interpretation
of the relevant provision of such will and the consequences that flow
therefrom.
2. The
relevant will, which has been accepted by the Master
appears to have
been executed on the 2 July 1991. Such document is annexed to the
founding affidavit as annexure “
FE2”.
The relevant
provision of the said will reads as follows:
“
B.
Aan my dogters, MARIA CORNELIA VAN DER
WESTHUIZEN
en CHRISTINA ALETTA SPANGENBERG,
of
by
gebreke
aan
hulle,
aan
hulle
afstammelinge
per stirpes, die volgende:-
(i)
My persele 243 en 741, Olyvenhoutsdrift, distrik Keimoes,
onderhewig aan die reg van Habitatio (woonreg) ten gunste van my
eggenote,
GERTRUIDE SPANGENBERG tot by haar dood of
hertroue,
watter geval
ookal
eerste mag plaasvind. Dit sal nie
vir haar nodig wees om sekuriteit aan die Meester of enige ander
instansie
te verskaf nie.
…”
3.
The relief that the applicant seeks is set out in prayers
1 to 4 of
the Notice of Motion dated the 19 February 2020. The relevant prayers
read as follows:
“
1.
It is declared that the right of habitatio granted to the Second
Respondent in terms of clause
B(i) of the last will
and testament of
the late Hendrick Hermias Spangenberg extend over the immovable
properties described as Plot 243 and 741, Olyvenhouttsdrift,
district
Keimoes, until her death or re-marriage, whichever may occur first;
2.
It is declared that the right of habitatio, referred to in
paragraph 1 above, includes the right and entitlement of
the
Second Respondent to lease and sub-lease the said properties and the
rental proceeds generated from the lease of all buildings
situated on
the properties referred to in paragraph 1 above, for the duration of
the right of habitatio;
3.
It is declared that, for the duration of the right of habitatio,
no other person can occupy the properties referred to in paragraph
1
above, without the consent of
the First Respondent;
4.
That
the costs of this application be paid from the estate
of the
late Hendrick Hermias Spangenberg, save in the event of opposition,
in which case the costs shall be paid
by such opposing
respondent.
”
4.
The relief sought in prayer 1, quoted above, depends upon the
interpretation
of the provision under clause B(i) of the will, also
quoted above. The relief sought in prayers 2 and 3 quoted above will
flow
from the interpretation of the provisions of B(i) of the
relevant will as well as the rights that normally form part of the
right
of
habitatio.
The relief sought in prayer 4 quoted above
is essentially within the discretion of this court.
5.
The applicant contends that the provisions of clause B(i) of the said
will mean that the second respondent has the right of
habitatio
over both Plot 243 and Plot 741. On applicant’s behalf it is
argued that this represents .the ordinary and natural meaning
of
clause B(i) of the said will. It was further contended on behalf of
applicant that there is no and there can be no ambiguity
in the
provisions of clause B(i) of such will. Further, that in such
circumstances, it was not permissible to refer to extrinsic
evidence
to determine the intention of the deceased as set out in the relevant
will.
6.
The third, fourth and fifth respondents (the opposing respondents)
faintly raise the issue that the applicant has not established a
basis for this court having jurisdiction to consider the declaratory
relief he seeks. This issue was raised in the Heads of Argument filed
on behalf of the opposing respondents but was not pursued
in oral
argument.
7. Then
the opposing respondents make a number of contentions in
interpreting
clause B(i) of the will. Firstly, they contended that the right of
habitatio
has been defined in an
ante-nuptial
contract
which was executed in 1985 and it was therefore not necessary for the
testator to repeat such definition. Secondly, they
contend that the
surrounding circumstances explain what clause B(i) means. Finally,
they contend that there is a ‘latent
ambiguity’ in the
provisions of clause B(i) of the relevant will. That such latent
ambiguity emerges when one considers certain
evidence external to the
relevant will.
8.
In support of their arguments the opposing respondents
annex to their
answering affidavit an opinion of a Senior Counsel which appears to
have been dated at Bloemfontein on the 23 June
2011. The said opinion
deals with the very questions that are before me for decision. This
is the first time that I have ever come
across such practice and it
is certainly not a practice that should be encouraged.
9.
Certainly, the opposing respondents would have been
free to argue the
views espoused in the relevant opinion when they argued the matter
before this court, and I would then have considered
such views on
their merits. However, to insert such opinion into the record and by
implication intimate that its source must somehow
sway my views is at
least inappropriate.
10.
To make matters worse, there are certain passages that are clearly
missing from the said opinion. Further, the opinion is based on the
instructions given to such Senior Counsel in a letter to him
from the
then instructing attorney. This letter does not form part of the
record. In such circumstances the factual basis upon
which the
opinion was given is not fully disclosed. The applicant has indicated
that he has the same complaints. Accordingly, I
shall simply ignore
the said opinion.
11.
In the circumstances of this matter, it will be convenient to deal
with the contentions of the opposing respondents first.
12.
Dealing
with the jurisdiction of this court to make declaratory orders
in
this matter, this situation is governed by the provisions of
s21(1)(c)
of
the Superior
Courts
Act
[1]
.
13.
The
then Appellate Division dealing with an earlier and similarly worded
statutory provision in the case of
Ex
Parte
Nell
held that the
court
has jurisdiction to entertain a declaratory order if there are
interested
parties
that
will
be
bound
by
such
order.
[2]
In
view
of
the
similarly worded
statutory
provisions
I
take
the
view
that
Ex
Parte Nell is still
binding
authority
on
this
court.
14.
Having regard to the history of the dispute as emerged with the
correspondence of the first executor appointed in the relevant
estate. I am satisfied that the declaratory orders sought by the
applicant will resolve such dispute. It is also clear from the facts
disclosed in the record that any declaratory order this court
might
issue will be binding on the applicant, the opposing respondents and
second respondent.
15.
As set out above I have already found that a number of parties will
be bound by any order this court makes. Accordingly, it follows that
the applicant has established that this court has jurisdiction
to
entertain the declaratory relief he seeks. Insofar as I may need to
exercise a discretion in the matter, for the aforesaid reasons,
I
exercise such discretion in favour of the applicant.
16.
The first argument dealing with the interpretation of the relevant
clause B(i) of the said will submitted on behalf of the opposing
respondents was that the right of
habitatio
was defined in the
ante nuptial
contract executed in 1985. The said
ante-nuptial
contract was annexed to the respondents’
answering affidavit. The relevant clause in the said contract reads
as follows :
“
4.
Dat
voormelde
HENDRICK
HERMIAS
SPANGENBERG aan
voormelde CHRISTINA GERTRUIDA IMMELMAN n bewoningsreg oor perseel
243, gedeelte van perseel 452, Olyvenhoutsdrifi
nedersetting Afdeling
Kenhardt verleen vanaf datum van die afsterwe van gesegde HENDRICK
HERMIAS SPANGENBERG tot die sterftedatum
van gesegde CHRISTINA
GERTRUIDA IMMELMAN, mits dat die huwelik tussen die partye nog van
krag was onmiddellik
voor
die afeterwe van gesegde HENDRICK HERMIAS SPANGENBERG.
”
17.
It seems to me that the argument of the right of
habitatio
being
defined in the
ante-nuptial
contract can be dealt with quite
simply. For this argument to hold sway the
ante-nuptial
contract,
or at least the definition of the right of
habitatio
therein,
would have to be incorporated into the will by reference. This is not
the case in the present circumstances. It then follows
that this
argument cannot stand.
18.
The
right of
habitatio
as
set out in the ante-nuptial contract also forms part of the next
argument raised by the opposing respondents, being that the
surrounding circumstances will explain clause B(i) of the said will.
The opposing respondents adopt two approaches in referring
to this
extrinsic evidence. First, they refer to the case of NATAL JOINT
MUNICIPAL PENSION FUND v ENDUMENI MUNI CI PALITY
[3]
in what appears to be another
context.
Then
by
sleight of hand the opposing respondents simply proceed as if the
unitary approach to interpretation, where one starts with the
language of the provision read in the context of the document itself
and having regard to the purpose of the provision and the
background
to the preparation and production of the document, applies to a
testamentary instrument. Second, the opposing respondents
then seek
to argue that the said
ante-nuptial
contract
together with certain other allegations creates or is evidence of a
latent ambiguity in the will. Both of these contentions
will be dealt
with in turn hereunder.
19.
The opposing respondents did not refer me to any authority where
the
'unitary' approach to interpretation has been applied to the
interpretation of a testamentary instrument. Nor could I find
any
such authority.
20.
However, once one gets over the initial shock of seeing this leap
from one context to another with no attempt to motivate it, it might
not be such an unreasonable position to adopt. On a conceptual
level
the well-established 'armchair' approach to interpreting a will
appears to largely overlap the 'unitary' approach to interpretation.
21.
The 'armchair' approach has been described by Corbett J (as he then
was) in the following terms:
“
On
the
other hand, in addition to receiving evidence applying
the
words of the will to the external facts, the Court is also entitled
to be informed of, and to have regard to, all the material
facts and
circumstances known to the testator when he made it. As it has been
put, the Court places itself in the testator's armchair.
Nevertheless, the primary enquiry still is to ascertain, against the
background of these material facts and circumstances, the
intention
of the testator from the language used by him in his will.
”
[4]
(references
omitted)
22.
When
one considers the purpose of the relevant provision in a will and the
background to the preparation and production of a will,
it would be
necessary to bear the following considerations in mind: A valid will
is executed in a formal legislated process
[5]
;
The underlying
rationale
for this formal legislated process is to eliminate or minimise the
opportunity for fraud and misrepresentation; and To
allow a formal
document such as a will to be interpreted with reference to extrinsic
evidence which may not have been produced
in a formal or
controlled
manner, needs to
be
approached with caution.
23.
The starting point remains the language of the provision, which is
now
read within the context of the relevant document itself. If the
relevant provision is clear and unambiguous and is not at odds with
the relevant document itself, there is no room for interpretation.
The relevant provision of the will then has its ordinary and
natural
meaning that can be ascribed to it in the context of the will itself.
The underlying rationale for this approach is that
the court must
refrain from writing a will for the testator. The court must give
effect to the will the testator actually wrote
and executed. Again,
this has been succinctly set out by Corbett J in the Aubrey Smith
case, the relevant passage reads as follows:
“
Generally
speaking, in applying and construing a will, the Court's function is
to seek, and to give effect to, the wishes of the
testator as
expressed in the will. This does not mean that the Court is wholly
confined to the written record. The words
of
the will must be applied to the external facts and, in the process of
application, evidence of an extrinsic nature is admissible
to
identify the subject or object of a disposition. Evidence is not
admissible, however, where its object is to contradict, add
to or
alter the clearly expressed intention of the testator as reflected in
the words of the will.
”
[6]
(references
omitted)
24.
It is only where there is an ambiguity in relation to the subject
or
object of the relevant provision in the will or if the relevant
provision is at odds with the rest of the document, read in
its
context, that there would be a justification in referring to
extrinsic evidence when considering the purpose of the relevant
provision in the will and the background to the preparation and
production of the will concerned.
25.
The relevant question to be determined then is whether the opposing
respondents have established an ambiguity in clause B(i) of the
relevant will or that the relevant clause is at odds with therest
of
the will. In my view the opposing respondents have failed to do so.
Clause B(i) of the said will is not ambiguous in any way.
It
naturally and properly confers a right of
habitatio
over both
plot 243 and plot 741 Olyvenhoutsdrift, district Keimoes on the
second respondent.
26.
The extrinsic evidence and arguments based thereon raised by the
opposing respondents contravene the approach of Corbett J as quoted
in the passages above. The object of such evidence, in the
present
case, was to contradict what is the clearly expressed intention of
the testator in the relevant will. Accordingly, such
extrinsic
evidence is not admissible in the circumstances of this case.
27.
This then leaves the issue of whether on the extrinsic evidence
referred to by the opposing respondents they have established a
latent ambiguity in the will.
28.
Again, the requirements of a latent ambiguity have been succinctly
set out by Corbett J in the Aubrey Smith case. The relevant passage
reads as follows:
“
lf
the
application
of
the
words
of
the
will
to
the external facts
reveals
what is termed a 'latent ambiguity' then additional evidence may be
admitted to remove it. There are two types of
latent
ambiguity: the first is where the words of the will are equally
applicable to two objects and there arises what is known
as 'an
equivocation
';
and
the second is where the words of the will are not clearly or
definitely applicable to any known subject-matter. In both these
cases further extrinsic evidence may be admitted but it would seem
that only in the case of an equivocation (if at all) may direct
declarations of intention by the testator before, at the time of or
after the execution of the will be admitted, and only then
when all
other aids and evidence have failed to provide a solution to the
problem.
”
[7]
(references
omitted)
29.
The opposing respondents have failed to establish that on the facts
of the case they presented in this matter that an equivocation
exists. They have also failed to establish that the words of the
will
are not clearly or definitely applicable to any known subject matter.
30.
In the circumstances, the opposing respondents have failed to
establish
a 'latent ambiguity' on the facts of this case.
Accordingly, they have failed to establish a basis for admitting the
extrinsic
evidence that they seek to rely on.
31.
In the circumstances, for the reasons set out above, the applicant
has established that he is entitled to the declaratory order set out
in prayer 1 of the relevant Notice of Motion.
32.
Whether applicant is entitled to the relief sought in prayers 2 and
3
of the said Notice of Motion will require a brief consideration of
the right of
habitatio
itself. The question is, does it
include the right to let or sub-let.
33.
The
right of
habitatio
has
been classified as a personal servitude
[8]
,
a limited real right .
[9]
It
allows the holder of such right to live in the house of another
without detriment to the substance of the relevant
property.
[10]
The holder of such right may sublet .
[11]
The holder of such right may
also
let
the
right
of
habitatio.
[12]
34.
The opposing respondent have complained
inter alia
that the
applicant's interpretation of clause B(i) of the will means that
theywill be evicted from their homes. Not at all, it simply
means
that they will have to come to an agreement with either the applicant
or the second respondent on a reasonable market related
rental for
their homes. On the opposing respondents' own version, the houses
built by the deceased for the fourth and fifth respondents
were built
essentially at the cost of the deceased.
35.
In such circumstances it is not unreasonable to conclude that the
deceased saw this as a mechanism to maintain his erstwhile spouse. As
the applicant has pointed out, if his application for declaratory
relief fails, the second respondent will have a claim against the
estate for maintenance in any event.
36.
In the circumstances, I conclude that the applicant is entitled to
the declaratory relief sought in prayers 2 and 3 of the relevant
Notice of Motion.
37.
That leaves the issue of costs to be determined. The applicant only
sought a costs order against those who opposed the relief he sought,
otherwise he sought an order that the costs be borne by the
estate.
The third, fourth and fifth respondents have actively opposed this
application. They have for the reasons set out herein
not been
successful in their opposition. In these circumstances, costs should
follow the result.
38.
Further, in circumstances where there are mainly fixed assets in
the
estate and no or insignificant cash assets, as appears to be the case
in the present matter, to order that the costs be paid
out of the
estate will simply mean that the applicant will have to find the
wherewithal to pay the said costs. This will create
a cash flow
problem for the estate. This will not be equitable in the
circumstances of this case. Having regard to the history
involved and
the nature of the opposition raised by the opposing respondent I find
that the third, fourth and fifth respondents
should pay the costs of
this application, the one paying the others to be absolved.
In
the circumstances, the following Order is made:
1)
DECLARATORY
RELIEF AS SET OUT IN PRAYERS 1, 2 AND 3 OF THE NOTICE OF MOTION DATED
19 FEBRUARY 2020 IS AWARDED
IN
FAVOUR OF THE APPLICANT.
2)
THE COSTS OF THIS APPLICATION ARE TO BE BORNE BY THE THIRD, FOURTH
AND FIFTH RESPONDENTS JOINTLY AND SEVERALLY, ON THE ORDINARY PARTY
AND PARTY SCALE, THE ONE PAYING THE OTHERS TO BE ABSOLVED.
L
LEVER
ACTING
JUDGE
HIGH
COURT, KIMBERLEY
NORTHERN
CAPE DIVISION
Date
of hearing:
6 NOVEMBER
2020
Date
of Judgment:
8
JANUARY
2021
APPEARANCES:
For
the applicant:
ADV S L ERASMUS
(oio
Engelsman Magabane Inc.
)
For
the 3
rd
, 4
th
and 5
th
ADV DC HATTINGH
Respondents:
(oio
Van De Wall Inc.
)
[1]
Act 10 of 2013
[2]
.
Ex
parte Nell,
1963
(1) SA 754
(A) at p 760C.
[3]
2012 (4) SA 593 (SCA).
[4]
Aubrey
Smith v Hofmeyer N.O.
1973
(1) SA 655
(CPD) at 657H.
[5]
Wills
Act,
No:
7 of 1953
.
[6]
Aubrey
Smith
case,
above at p 657E to G.
[7]
Aubrey
Simth
case,
above at pp 657H to 658C.
[8]
Kidson
v Jimspeed Enterprises CC
2009
(5) SA 246
(GNP) at 250C-E.
[9]
Above.
[10]
Hendricks
v Hendricks
2016
(1) SA 511
(SCA) at 514F.
[11]
LAWSA,
2nd
Edition., Vol 24 para 605.
[12]
Arend
v Estate Nakiba
1927
CPD 8
at p10.