About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 649
|
|
Furman NO and Others v Hattingh (8914/2017) [2018] ZAGPJHC 649 (12 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 8914/2017
In
the matter between:
DARRYL
FURMAN
N.O. 1
st
PLAINTIFF
GREGORY
PAUL WEINBREN
N.O. 2
ND
PLAINTIFF
DEAN
ADAM WEINBREN
N.O. 3
RD
PLAINTIFF
ROWAN
FURMAN
N.O. 4
TH
PLAINTIFF
And
CARL
FRANK
HATTINGH DEFENDANT
JUDGMENT
TSOKA
J
[1]
The duly appointed executors of the estate of the late Milton
Lawrence Weinbren (Weinbren) sue the defendant, Carl Frank Hattingh
(Hattingh) for payment of the sum of R15 829 833 together with
interest and costs. The R15 829 833 is the proceeds of a policy
issued by Old Mutual taken by Hattingh on the life of Weinbren
pursuant to a Buy and Sell Agreement concluded between Hattingh
and
Weinbren.
[2] On 28 November 2008,
Weinbren and Hattingh concluded three agreements namely –
2.1. a
Memorandum of Agreement (the Acquisition Agreement) in terms of which
Hattingh with effect from 1 March 2009 bought 25% member’s
interest in a close corporation known as Air and Allied Technologies
CC (A&AT) owned by Weinbren;
2.2. a
Member’s Association Agreement (MAA) for the purposes of
regulating the affairs of A&AT; and
2.3. a
Buy and Sell Agreement (BSA), the purpose of which was to cater for a
deemed acquisition of a member’s interest in
A&AT in the
event of death or disability of Weinbren or Hattingh while the
agreement remained extant.
[3]
However, the parties on 29 August 2013 concluded an addendum to the
agreement (the Addendum) which, on the face of it, purported
to
cancel the Acquisition Agreement with regard to Hattingh’s
acquisition of 25% member’s interest in A&AT. As
a result
of the Addendum, Hattingh’s member’s interest thus
reverted to Weinbren with effect from the date of the Addendum.
In
due course the necessary documentation was signed to record this fact
in the offices of the Companies and Intellectual Property
register.
[4] Prior to the
execution of the Addendum, on 8 August 2013, Weinbren provided
Hattingh with a memorandum entitled “Handover”.
The
handover was of the close corporation to be managed and controlled by
Hattingh as Weinbren intended to emigrate to Australia.
In the
memorandum Weinbren records “
from henceforth [Weinbren] will
not be involved in any way with the daily running of the
organization, but only as a ‘consultant’
on technical
issues when needed.”
[5]
With regard to imbalance of the parties’ value of the life
policies taken out pursuant to the BSA, the parties agreed
that
Hattingh would take out additional life cover to equal Weinbren’s
cover of R11, 25 million being 75% of the latter’s
member’s
interest in A&AT. In due course, Hattingh contacted his insurance
broker to take out a Key-man policy to equalize
the insurance
policies between the two members of A&AT.
[6]
The principal issue for determination at the trial was the effect and
legal consequence of the Addendum and its effect on the
BSA and in
particular whether on the death of Weinbren, Hattingh was entitled to
retain the proceeds of the BSA policy issued by
Old Mutual instead of
purchasing Weinbren’s 75% member’s interest in A&AT.
[7]
It is the plaintiffs’ contention that they are entitled to the
proceeds of the Old Mutual Policy, while Hattingh, on the
other hand,
insists that as the Acquisition Agreement was cancelled, and by
implication, the BSA, he is thus entitled to the proceeds
of the
policy. According to Hattingh, the plaintiffs’ contention that
the proceeds of the policy belong to them as the deemed
sellers of
75% of the late Weinbren’s interest in A&AT is therefore
baseless and legally unsustainable.
[8]
Initially Hattingh disputed the plaintiffs’ locus standi to
institute the present action but at the trial, once the plaintiffs
produced letters of executorship in the estate of Weinbren, which
conclusively proved that the plaintiffs have been duly appointed,
this challenge was no longer pursued. Similarly, although Hattingh
did not disclose how he and the late Urma Balckburn (Blackburn),
his
former wife, were married, but once Mr Barend Jacobus Van Heerden
(Van Heerden), the nominee of Veritas Board of Executors
who were the
duly appointed executors of the estate late Blackburn confirmed that
Hattingh and the late Balckburn were married
to each other in
community of property, Hattingh had no choice but to concede and
confirm that he and his former wife were indeed
married in community
of property.
[9]
The issues that then remained for determination by the court was,
first whether Hattingh ever withdrew from the Acquisition
Agreement
and therefore held no 25% member’s interest in A&AT and
second, whether the Addendum was a simulated event
with its sole
purpose being to defeat the late Blackburn’s heirs to lay claim
to half of Hattingh’s 25% member’s
interest in A&AT.
One should remember that by operation of the law, Blackburn being
married to Hattingh in community of property
and profit and loss, she
was entitled to the undivided half-share of the said 25% member’s
interest in A&AT. The undivided
half-share in A&AT, on her
death, fell into her estate for the benefit of all her heirs.
[10]
Hatting’s stance has been that since the Addendum, and when the
25% member’s interest reverted to Weinbren and
the necessary
documentation was signed in this regard, he ceased to be a member of
A&AT. In support of this fact he maintained
that all the
suretyships he signed on behalf of A&AT lodged with Standard Bank
Limited were, as a result of the Addendum, cancelled.
[11]
However, according to Mankedi William Mankge (Mankge), the Standard
Bank Ltd’s Accounts Manager, under whose control
and management
the accounts of A&AT fell, Hattingh never executed a suretyship
on behalf of the close corporation. His undisputed
evidence reveals,
that there was nothing to be cancelled by Hattingh once the Addendum
was effected and the 25% member’s
interest in A&AT reverted
to Weinbren. Mankge further testified that the only person who had
signed suretyship on behalf of
A&AT, was Weinbren.
[12]
Of crucial importance to the resolution as to whether Hattingh ever
withdrew from being a member of A&AT, is the evidence
of Mr Allen
Narunsky (Narunsky), a chartered accountant in the employ of Vexillum
Auditors (Vexillum), the accounting officer of
A&AT since 2008
until Weinbrens’ death on 31 October 2016 when the latter
committed suicide.
[13]
Narunsky testified that, consequent upon the death of Blackburn, both
Weinbren and Hattingh were concerned about the latter’s
25%
member’s interest in A&AT to which the heirs of the late
Blackburn had an undivided half-share. In addition, the
two, that is
Weinbren and Hattingh, particularly the former was more concerned
that the financials of A&AT would be exposed
to outside parties
who he wanted to keep away from the financial health of the close
corporation. It was as a result of this concern
that a plan had to be
devised to avert this eventuality.
[14]
During February 2013, Weinbren, Hattingh and their attorney Darryl
Furman, the first plaintiff, met with Narunsky. At this
meeting,
Darryl Furman came with a solution to which solution all the parties
present agreed to. The solution was that Weinbren
and Hattingh must
conclude what purports to be a cancellation agreement of the
Acquisition Agreement. This was termed an Addendum
to the Acquisition
Agreement. It purported to cancel the Acquisition Agreement and thus,
to the outside world, and in particular
to the heirs of Balckburn,
Hattingh was not a member of A&AT and had no member’s
interest therein to which the heirs
of the late Blackburn would be
entitled to.
[15]
According to Narunsky, Weinbren and Hattingh further agreed that,
once the paper work had been done to effect this solution,
Weinbren
would hold Hattingh’s member’s interest in A&AT until
Blackburn’s estate had been wound-up. Once
the winding-up was
completed, it was up to Hattingh to call up the member’s
interest and to have it again registered in his
name. Until the
winding-up of Blackburn’s estate, so testified Narunsky,
Weinbren could not deal with or dispose of Hattingh’s
interest
in A&AT.
[16]
As to the issue of payment, Narunsky testified that by 2010 A&AT
had an accumulated loss of about R5 million. At the meeting
of
February 2013, the parties agreed that Hattingh would acquire the 25%
member’s interest in A&AT at a nominal value
of R1.00. In
fact in an email emanating from Hattingh, this fact is confirmed. To
put his mind at rest, Hattingh required the recordal
of the purchase
price at a nominal value to be in writing, which, in due course, was
done. According to Narunsky it was only during
2012 that A&AT
started showing upward trajectory in making profit. In 2013 A&AT
yielded a positive income in the sum of
R2 479 881 resulting in a
dividend of R170 000 being declared to which Hattingh received R42
500, being the 25% of R170 000 and
Weinbren the remainder being 75%
of the said R170 000.
[17]
Although he, Narunsky, as the accounting officer of A&AT effected
the transfer of Hattingh’s 25% member’s interest
in the
close corporation to Weinbren, nothing changed. Hattingh for all
intents and purposes remained a member of A&AT holding
25%
interest therein. He remained the general manager of the close
corporation until December 2016. In that capacity he exercised
the
same authority as he did after the change in the close corporation’s
membership. His salary remained the same. His loan
account in A&AT
also remained the same although this was not accounted for in the
books of account of the close corporation.
To buttress his evidence
that Hattingh remained a member in A&AT, Narunsky pertinently
testified that Hattingh participated
in the discussions surrounding
the 2013 financial statements of the close corporation. The overall
evidence of Narunsky, which
was in the main, undisputed, is that
Hattingh did not withdraw from being a member of the close
corporation. Neither did he ever
resign as the general manager of
A&AT.
[18]
The third plaintiff, Mr Dean Adam Weinbren (Dean) testified that he
is the son of the late Weinbren. On 1 November 2016, pursuant
to his
late father’s death, he received a letter from the first
plaintiff enclosing the Last Will and Testament of his father.
Clause
5.2 of the Will records the fact that although Hattingh may not be
reflected as a member of A&AT, his 25% member’s
interest in
the close corporation had been paid for.
[19]
In substantiation that Hattingh was indeed a 25% member in A&AT,
he testified to what his father communicated to him during
his
life-time. Although this appeared to be hearsay, Hattingh did not
object thereto. In any event the communication was in terms
of
section 3
of the
Law of Evidence Amendment Act 45 of 1988
and, as it
was in the interest of justice same was admitted into record as
evidence. Furthermore, the admission of the evidence
was not
prejudicial to Hattingh.
[20]
According to Dean, his father was concerned about Hattingh’s
member’s interest being exposed to the heirs of Blackburn.
In
2013 while seated at a table in Australia, his father received a call
on his cellphone. During the cellphone call his father
became so
agitated that he excused himself from the family table. However, once
the cellphone call was terminated, he became relaxed
and returned to
the table. His calmness, so his father disclosed to him later, was
that a solution to Hattingh’
s 25%
member’s interest in
A&AT being exposed to Blackburn’s heirs had been found. On
being asked by the court who the
person he spoke to on the cellphone
was, Dean stated that his father informed him that he spoke to the
first plaintiff who told
him about the solution to his father’s
concern: the Addendum to ward-off Balckburn’s heirs from the
affairs of A&AT.
[21]
The last witness who testified for the plaintiffs was the fourth
plaintiff, Mr Rowan Jared Furman (Rowan). He is an admitted
practicing attorney. He is the person who wrote the letter to
Hattingh confirming the latter’s request in writing that the
25% member’s interest in A&AT was paid for at a nominal fee
of R1.00 during 2010. His evidence was not challenged. From
his
testimony, it is clear that despite Hattingh’s protestation
that at the death of Weinbren he had not purchased his member’s
interest in the close corporation, this was done as long ago as 2010,
before the said Weinbren’s demise in 2016.
[22]
In rebutting plaintiffs’ version, Hattingh and one Mr Arthur
Boshoff (Boshoff), an insurance broker, who assisted the
former in
obtaining insurance policies including the BSA as well as the Key-man
policy required by Weinbren in 2013, testified.
[23]
According to Boshoff, the Key-man policy was required by Weinbren to
strike equality between Weinbren and Hattingh in their
life policies
as the BSA was no longer applicable. In cross-examination, he
conceded that the Key-man Policy was in fact required
to bring
equality between the two members solely to ensure that Hattingh, as
the Key member of the close corporation who had to
take over the
complete control of its affairs should Weinbren emigrate to
Australia, their life policies were equal. Regarding
his further
evidence as to the crucial issues to be determined by this court, his
testimony added nothing of value.
[24]
Hattingh testified in his own defence. Although he testified to the
meeting held between Weinbren, the first plaintiff, Narunsky
and
himself regarding the estate of his late wife, he underplayed the
fact that his member’s interest in A&AT would have
raised
the interest of his wife’s heirs and that Weinbren was worried
about outsiders becoming privy to the financial affairs
of the close
corporation.
[25]
Hattingh states that the reason for the cancellation of the
Acquisition Agreement was because he was unable to pay for his
member’s interest in A&AT as the latter had not declared
dividends from which he would be able to pay for his 25% member’s
interest in the close corporation. This version is not only at odds
with the testimony of Narunsky but is at variance with the
concern he
and Weinbren had regarding the late Balckburn’s heir’s
interest in the undivided half-share in his member’s
interest
in the close corporation. The non-payment of his member’s
interest, which according to him was the purpose of the
meeting, was
neither put to Narunsky to react thereto. That his explanation and
the purpose of the meeting is to avoid the real
reason for the
cancellation of the Acquisition Agreement, is obvious.
[26]
With regard to the payment of his member’s interest at R1.00 as
far back as 2010, he testified that the nominal fee was
paid solely
for the purposes of taxation, as otherwise, had he just handed his
member’s interest in A&AT to Weinbren
without any payment,
there would be donation tax implications. This version was also not
put to Narunsky or the other plaintiffs
to react thereto. In
cross-examination, reluctantly, he had to concede that his member’s
interest in A&AT was paid for
R1.00 in 2010 as the close
corporation, for the years leading up to 2010, had accumulated an
income deficit of over R5.5 million.
[27]
Hatting agrees that on 18 February 2013 he met Veritas’
representative, Van Heerden, regarding his member’s interest
in
A&AT which was going through financial difficult times. Because
of A&AT’s perilous financial position, he thought
there was
no obligation on him to disclose his member’s interest to the
heirs of his deceased wife. His understanding is,
however incorrect.
The disclosure did not depend on him or on Van Heerden. By operation
of the law, as the person married to Blackburn
in community of
property and who was entitled to the undivided half-share therein, it
was expected of him to disclose his interest
in the close
corporation. In any event, the explanation that he thought there was
no obligation on him to disclose his 25% member’s
interest in
the close corporation is contrary to the version put to the
plaintiffs’ witnesses.
[28]
In cross-examination, Hattingh, again reluctantly, conceded that as
far back as 2010, he and Weinbren had agreed that he had
acquired the
member’s interest in A&AT for R1.00. That he and Weinbren
were ad idem that the two members of the close
corporation were him
and Weinbren holding 25% and 75% member’s interest in A&AT
respectively, is beyond doubt. Weinbren’s
last Will and
Testament, attesting to his member’s interest having been for
R1.00 in 2010 is therefore a true recordal of
payment of his 25%
member’s interest in the close corporation.
[29]
The version of the plaintiffs as to whether Hattingh ever withdrew
from A&AT is clear and, in the main, uncontroverted.
Hattingh
remained a 25% member in A&AT. In fact Hattingh’s
testimony, rather than disputing this version, confirms that
at no
stage did he ever, in reality, withdraw as a member of the close
corporation. Hattingh’s involvement in the affairs
of the close
corporation and his taking out the Key-man policy with regard to the
affairs of A&AT, reveal nothing other than
that, despite the
Addendum and the reverting of his 25% member’s interest in A&AT
to Weinbren, he remained an active
and key personnel of the close
corporation. He was the driving force behind the close corporation as
Weinbren was no longer active
in the affairs of A&AT until
December 2016.
[30]
It is common cause that prior to Weinbren’s demise, Weinbren
intended to emigrate to Australia. Both Weinbren and Hattingh
agreed
that the key person to manage, control and supervise the business
activities of A&AT, was Hattingh. It is therefore
unsurprising
that Hattingh, without demur, accepted his responsibilities hence the
taking out of the Key-man Policy.
[31]
The undisputed correspondence emanating from both the first
plaintiff, the parties’ attorney at the time, as well as
Weinbren’s letter to Hattingh stating that the latter only
withdrew on paper, while in fact and truth, he remained a member
of
A&AT corroborates the fact that at no stage did Hattingh withdraw
as a member of the close corporation despite the documentary
proof
that his member’s interest in A&AT reverted to Weinbren.
[32] The conclusion
reached is therefore that Hattingh never withdrew as a member of the
close corporation. Although on paper he
was no longer a member, in
fact and truth, he was still a member. The survival of the close
corporation, had Weinbren’s wishes
to emigrate to Australia
been fulfilled but for his death, would depend solely on his active
role played in the affairs of A&AT.
Was
the addendum to the Acquisition Agreement real or simulated act to
thwart Blackburn’s heirs to lay claim on Hattingh’s
member’s interest in A&AT?
[33]
Ex facie the Addendum, it appears that Hattingh and Weinbren
cancelled the Acquisition Agreement. The reality is that the Addendum
is not what it purports to be. It is a simulated act. Although the
necessary documents were executed by the parties to perfect
the terms
of the Addendum, that is to say, cancelling the Acquisition
Agreement, the intention of both Weinbren and Hattingh was
to the
contrary. To the outside world, the Acquisition Agreement was
cancelled though in reality, between the two members of A&AT,
the
two remain the only two members of the close corporation.
[34]
As pointed out above, the undisputed evidence of Narunsky is that, in
spite of the Addendum, Weinbren was not at liberty to
dispose of
Hattingh’s member’s interest in A&AT. Weinbren was to
hold Hattingh’s member’s interest
in A&AT until the
latter’s late wife’s estate had been wound-up. As long as
that eventuality had not occurred,
to the outside world, and in
particular, the heirs of Blackburn, Hattingh had no interest in A&AT
to which Blackburn’s
heirs were entitled to.
[35]
As Hattingh had acquired the 25% member’s interest in A&AT
in 2010 for R1.00, there was nothing to cancel, as the
agreement had
been perfected. The Addendum concluded in August 2013 was nothing but
a simulated transaction. Nothing having been
cancelled, the
Acquisition Agreement and the BSA remained extant. In fact the very
foundation of the Addendum, being the failure
by Hattingh to pay the
purchase price in terms of clause 4 of the Acquisition Agreement is
an untruth. At the time the Addendum
was concluded, A&AT’s
fortunes had turned around. It was making profit. In fact dividends
in the amount of R170 000 had
been declared. The terms and provisions
of the Acquisition Agreement and the BSA must thus be
honoured
and be acted upon.
[36]
That Hattingh contravened the provisions of
section 9
of the
Administration of Estates Act 66 of 1965
in not disclosing to the
Master in the Estate Late Blackburn that his late wife had an
undivided half-share in the 25% member’s
interest in A&AT,
is obvious. Had the said undivided half-share been disclosed to both
the Master and the Executor in the Estate
Late Blackburn, such share
would have been accounted for and increased the remuneration due and
payable to the Executor in that
Estate. The non-disclosure not only
constituted a criminal act in terms of the
Administration of Estates
Act on
the part of Hattingh but also robbed both the Executor and the
heirs of his deceased wife’s estate of what was due to them.
[37]
In
Hippo Quaries (TVL) (Pty) Ltd v Eardley
[1]
the
court, dealing with a simulated transaction such as the one in issue
in the present matter, stated that –
‘
Motive
and purpose differ from intention. If the purpose of the parties is
unlawful, immoral or against public policy, the transaction
will be
ineffectual even if the intention to cede is genuine. That is a
principle of law. Conversely, if the intention to cede
is not genuine
because the real purpose of the parties is something other than
cession, their ostensible transaction will likewise
be ineffectual.
That is because the law disregards simulation. But where, as here the
purpose is legitimate and the intention is
genuine, such intention,
all other things being equal, will be implemented.’
[38]
In
CSARS
v NWK
[2]
the court in determining whether an act is simulated, stated that –
‘
[55]
In my view the test to determine simulation cannot simply be whether
there is an intention to give effect to a contract in
accordance with
its terms. Invariably where parties structure a transaction to
achieve an objective other than the one ostensibly
achieved they will
intend to give effect to the transaction on the terms agreed. The
test should go further, and require an examination
of the commercial
sense of the transaction: of its real substance and purpose. If the
purpose of the transaction is only to achieve
an object that allows
the evasion of tax, or of a peremptory law, then it will be regarded
as simulated. And the mere fact that
the parties do perform in terms
of the contract does not show that it is not simulated: the charade
of performance is generally
meant to give credence to their
simulation.’
[39]
In the instant matter, where public policy is determined in terms of
the Constitution, the supreme law of the land, the foundational
principle of the rule of law, must be scrupulously complied with.
Simulated transactions, such as the one in the present matter,
must
be frowned upon particularly where it is clear that the purpose and
intention of Weinbren and Hattingh was to deprive the
heirs to the
Estate Late Blackburn of their entitlement to the undivided
half-share in Hattingh’s member’s interest
in A&AT,
contrary to the provisions of section 25(1) of the Constitution, in
terms of which no one may be deprived of property
except in terms of
the law of general application. In addition, the Addendum was
concluded to defeat the provisions of the
Administration of Estates
Act in
particular the provisions of
section 9
[3]
.
[40]
The real substance and purpose of the Addendum was to thwart the Late
Blackburn’s heirs to their undivided half-share
of the 25% held
by Hattingh in A&AT. The Addendum, other than to achieve its
purpose, makes no commercial sense whatsoever.
The basis of the
Addendum, according to Hattingh, was Hattingh’s failure to pay
the purchase price from the dividends declared
by A&AT as none
were declared. This is an untruth as the latter was making profit and
dividends had in fact been declared and
shared proportionally
according to the member’s interest in A&AT. The charade of
performance by both Hattingh and Weinbren
in accordance with the
Addendum is nothing but to give credence to their simulation.
[41]
The conclusion reached is therefore that the simulated transaction of
both Weinbren and Hattingh is found to be ineffectual.
The purpose
for concluding the Addendum is not only immoral but against public
policy too. Their intention too, was not genuine.
Resultantly, the
Addendum is regarded as
pro
non-scripto
. The
fact that Narunsky, Weinbren and Hattingh acted on the Addendum, is
of no moment. Their actions remain simulated.
[42]
That the Addendum is a simulated act is buttress by both Weinbren and
Hattingh conducting themselves contrary thereto. Even
the BSA was
never cancelled despite the fact that its very existence depended on
the Acquisition Agreement. The Will of Weinbren
in 2016, in spite of
the Addendum, still records that the 25% member’s interest in
A&AT was paid for by Hattingh. If
the parties’ actions were
not simulated, one would have expected that the Will that was
executed 3 years after the Addendum,
would not record this fact.
[43]
Hattingh’s contention and his written submissions that the BSA
was terminated in terms of clause 13.1.3 of the said agreement
and in
consequence of the Addendum, is incorrect.
[44]
Clause 13.1.3 of the BSA provides that the agreement would be
cancelled if “one of the Parties withdrawing from the
Business.” In terms of the BSA, “Business” means
“Air and Allied Technologies CC…”
[45]
As pointed out above, at no stage did Hattingh ever withdraw from the
business of A&AT. Instead, he remained the key-person
conducting
the affairs of the close corporation. When Weinbren handed over the
affairs of A&AT to him, he gladly accepted such
responsibilities
until December 2016 when he withdrew from A&AT. On termination of
the BSA, that is to say, withdrawing from
the business of A&AT,
either Hattingh or Weinbren, in terms of clause 13.2, would have an
option excisable in writing within
90 (ninety) days from termination
“to claim outright cession of such policy from the owner of the
policy…”
[46]
In the present matter, in spite of Hattingh persisting with the
assertion that he withdrew from A&AT, he never utilized
the
option available to him in terms of clause 13.2 of the BSA. No
outright cession of Weinbren’s policy was ever claimed
from the
latter. That in terms of the BSA, Hattingh was obliged to buy
Weinbren’s interest in A&AT from the proceeds
of the life
policy taken over Weinbren’s life, admits no doubt.
[47]
Hattingh’s further contention that the BSA was cancelled “in
consequence of the conclusion of the Addendum to the
Memorandum of
Agreement”, is far from the truth. The Addendum pertinently
states that it relates to the cancellation of the
agreement in terms
of which Hattingh failed to pay the purchase price of his member’s
interest in A&AT. In terms of the
BSA, Hattingh was not buying
anything from either Weinbren or A&AT. He merely took out a life
policy with Old Mutual over the
life of Weinbren while Hattingh took
out a life policy with Liberty Life to cater for either the death or
disability of the latter.
Furthermore, the BSA has its own mechanisms
for termination. Such mechanisms were not utilized to cancel it. It
remained extant.
In the absence of any written cancellation of the
BSA, there cannot be any talk of implied cancellation having regard
to the non-variation
clause of the said agreement. There being no
variation or alteration of the BSA reduced to writing and signed by
both Hattingh
and Weinbren, the BSA remained current until Weinbren’s
death in August 2016.
[48]
The plaintiffs having elected not to claim 75% of the value of the
purchase price of Weinbren’s member’s interest
in A&AT
but the proceeds of the BSA, the following order is therefore made –
48.1 The defendant is
ordered to pay the plaintiffs the amount of R15 829 833 with interest
at the rate of 10.5% per annum calculated
from 1 December 2016 to
date of payment.
48.2
Costs of suit including costs of senior counsel.
___________________
M TSOKA
JUDGE OF THE HIGH
COURT
Appearances:
For
the Plaintiffs: Adv Sawma SC
Instructed
by: Edelstein Farber Grobler
For
the defendant: Adv Vetten
Instructed
by: Kasimov & Associates
Date
of hearing: 31 October 2018
Date
of Judgment: 12 December 2018
[1]
Hippo
Quaries (TVL) (Pty) Ltd v Eardley
[1991] ZASCA 174
;
1992 (1) SA 867
(A) at 877 C –
E
[2]
CSARS v NWK
2011 (2) SA 67
(SCA) para 55
[3]
“
(1)
If any person dies within the Republic …, the surviving
spouse of such person …, shall within 14 days after
the death
or within such further period as the Master may allow –
(a)
make an inventory in the prescribed form,
in the presence of such persons having an interest in the estate as
heirs as may attend,
of all property known by him to have belonged,
at the time of the death –
(i)
to the deceased or;
(ii)
in the case of the death of one of two or
more spouses married in community of property, to the joint estate
of the deceased and
such surviving spouse; or
(iii)
…
;
(b)
subscribe such inventory in his own hand
and endorse thereon the names and addresses of the persons in whose
presence it was made
and;
(c)
deliver or transmit such inventory to the
Master.”
In
terms of
s102
of the Act, any person who contravenes the provisions
of the Act, in particular the provisions of
s9
is committing an
offence and on being found guilty of such offence is liable to a
fine or imprisonment.