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[2018] ZAFSHC 33
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Hamilton and Another v Badenhorst and Others (5348/2017) [2018] ZAFSHC 33 (29 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case number:
5348/2017
In
the matter between:
HAMILTON
JANNIE & 1 OTHER
Applicants
and
BADENHORST
ENGELA HELENA & OTHERS
Respondents
HEARD
ON:
15 FEBRUARY 2018
DELIVERED
ON:
29
MARCH 2018
RAMPAI,
J
[1]
He died on 17 January 2017. His death ripped his family apart. The
family feud spawned from a will and testament which he and
his spouse
jointly executed and assented to. Central to the family feud is
the validity of an unsigned and unregistered trust
deed prepared and
drawn up by an attorney on the instructions of his broker
[2]
Lourens Hendrikus Bardenhorst was born on 6 November 1929. The first
respondent is his surviving spouse. She is the executrix
of the joint
will. Three children were born of their marriage,namely Hester, Engel
and Anette. The couple lived on a farm, Eben-Hauser,
district Koppies
Province Free State.
[3]
His daughter Hester Johanna Scheepers (ex) Bardenhorst was cited as
the third respondent. His daughter Engela Helena Bardenhorst
was
cited as the fourth respondent. His daughter Anette was not before
me. She predeceased him. She died at Nigel on 15 July 2011.
[4]
Anette Bardenhorst was married. Her surviving husband is Jan Petrus
Hamilton, the second applicant. Their son is Jannnie Hamilton,
the
first applicant. The first applicant is the deceased testator’s
grandson and the second applicant is the testator’s
son-in-law.
Therefore, the applicants are related to the first respondent in the
same way. The first applicant is a lawyer. The
second applicant is a
pastor. They currently live at Benoni in Gauteng
[5]
His surviving spouse, Engela Helena Bardenhorst, the first
respondent, was cited as in her personal capacity. She was
testamentarily nominated his executrix. By virtue of her office
she was also cited in her representative capacity as the
second
respondent.
[6]
The matter came to court by way of motion proceedings. The relief
sought is twofold. The primary relief is declaratory in nature.
The
ancillary is mandamus in nature. The application is opposed by all
the respondents with the exception of the fifth respondent,
The
Master of the High Court, Bloemfontein. He abides.
[7]
The primary relief which the applicants seek is to have “the
last will and testament” of Lourens Hendrikus Bardenhorst
declared valid in its entirety and capable of execution,Notice of
motion.
[8]
It is common cause that the aforesaid deceased testator’s will
has been lodged with the fifth respondent that it has been
accepted
that the second respondent has been issued with the required letters
of executorship. The decision of the fifth respondent
whereby
he accepted the will and the testamentary nomination of the 1
st
respondent as the executrix has never been challenged by anyone.
Hardly anyone even questioned the master about it.
[9]
The primary relief does not purport to constitute a declaratory
order or a review of the aforesaid decision. Certainly
it cannot be
interpreted as such. It neither seeks to define the rights of the
parties nor does it seek to have the executrix ordered
to take or
refrain from taking any steps to the detriment of the applicants.
[10]
In view of the above considerations, I am persuaded that the primary
relief sought by the applicants is tantamount to
brutum
fulmem. This completes my consideration of the first leg of the
notice of motion.
[11]
The ancillary relief sought by the applicants is to have the parties
authorized to take all the necessary steps in order to
have the
proposed trust registered in terms of a “draft trust deed”
marked “anx fa7” appended to the founding
affidavit.
[12]
The choice of the words “the parties be authorized” was
inappropriate. The words suggested that the parties
were
willing and able have the proposed trust registered on the terms and
conditions contained in “anx fa7” but were
hamstrung by a
legal impediment of some sort. Of course, that was not the case. The
hard fact of the matter is that the parties
are of loggerheads.
Whatever the common family dream about the the creation of a trust
they might have been prior to 17 January
2017, it was shattered by
the death of the testator.
[13]
His death was a defining moment. To register or to register the
proposed trust poshumously became a devastatingly divisive
matter.
The granting of the ancillary relief as particularised in 2 notice of
motion , will certainly fuel the family fraud.
It will
inevitably lead to further expensive and stressful litigation. The
rift between the feuding family factions will rapidly
widen and the
void of animosity will deepen.
[14]
The final relief sought by applicants is to have the immovable
properties as fully referred to in clause 4.1.1 of the will,
“anx
aa3”, transferred to the Eben –Hauser Trust by the 2
nd
respondent the executrix as the executrix of “The
Deceased Estate: Late L.H Bardenhorst in accordance with the
testamentary
precepts of clause “4 anx aa3”.
[15]
The grant of the third leg of the substantive relief sought will
depend on the adjudicative outcome of a critical analysis
of the
second leg.
[16]
As I have already said, these are motion proceedings. Motion
proceedings have their own perculiar principles. That being the
case
, it is only proper to consider the impact of some legal principles
applicable to motion proceedings on the current application.
[17]
The basic principles in motion proceedings is that an applicant
stands or falls by the
averments
he makes in the founding affidavit.
Brayton
Carlswald (Pty) Ltd and Another v Brewis
2019 (5) SA A98
(SCA) par [29]
Betlane
v Shelly Court cc
2011
(1) SA 388
(cc) par [29].
[18]
In motion proceedings the affidavits filed in support of the
application or in opposition
thereto
serve a dual purpose. They are regarded and treated both as the
foundational pleadings and as the supporting evidence.
De
Lange v Presiding Bishop, Methodist Church (SA) and Another
2015 (1) SA 106
(SCA).
Transnet
Limited v Rubenstein
200 (1) SA 591
(SCA).
[19]
As a general rule, and save in exceptional circumstances,
disputes of fact arising on affidavits in motion proceedings,
cannot
be finally determined on papers. This is trite.
[20]
The rule concomitant to the above is that, in the event of material
factual dispute arising an affidavits in motion proceedings,
the
applicant can only succeed in those exceptional circumstances if, and
only if, the respondents version of the disputed facts
can safely be
rejected on the papers as being farfetced or unattenable.
Plascona-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(SCA) at 634E-C. Put differently, in motion
proceedings, as a general rule, decisions concerning factual disputes
cannot be grounded
on a consideration of probabilities unless, of
course,the court is satisfied that there is no real and genuine
dispute on the facts
in question or that the one party’s
factual allegations are so far-fetched or clearly unitenable as to
warrant their rejection
merely on the papers as they are.
Administrator,
Transvaal and Another v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) ax 197A.
[21]
In motion proceedings a respondent is required to meet (and refute)
only those specific allegations of fact as were put forward
by an
applicant. He is not required to anticipate and refute possible but
unstated allegations of fact subsequently raised and
contiended for,
Theletsane
supra
,
at 196C-I.
[22]
In dealing with the equivocality of contentions in a respondent’s
affidavit, it is impermissible for a court to base
factual findings
concerning such contentions on a mere weighing- up of possibilities.
Theletsane,
supra
at 196I-J.
[23]
As regards the salient features of the applicant’s case, I turn
to the founding affidavit . At this juncture, it is imperative
to
consider whether the applicants have, in their founding affidavit,
made out a case for the relief they seek. I proceed to summarise
their case.
[24]
The decased testator had previously executed a will . He revoked the
previous will by executing the current will. The previous
will was
executed on pretty much the same testamentary structure as
foreshadowed in the current will save in one respect. In his
previous
will, the deceased testator’s wish was to bequeath fixed assets
to a testamentary trust. In his current will, he
wished to bequeath
fixed assets to an inter vivo trust.
[25]
During June 2016, the deceased testator convened a family meeting.
The meeting was attended by all the parties
at the invitation
of the decased testator. He informed the parties that he intended to
amend his previous will by creating an inter
vivo trust as opposed to
a testamentary trust he had created in his previous will. He further
informed them that his broker had
advised him of the financial
advantages of the inter vivo trust.
[26]
Subsequent to the family meeting and pursuant to the broker’s
financial advice, the
deceased testator went ahead and executed the current will -
see “anx fa 6”. A more legible
copy thereof is “anx
aa3”. Clause 4.1 thereof provides:
“
Ons
bemaak aan die te stigte
Inter
Vivos
Trust,
bekend as
EBEN-HAESER
TRUST,
die volgende bates om bestuur te word volgens die bepalings van die
TRUST AKTE”
The
will was co-signed at Koppies on 10 August 2016.
[27]
Subsequent to the execution of the deceased testator’s last
will, (anx fa6), the broker contacted, among others, the
first
applicant during August 2016 for a copy of his identity
document. The broker was collecting personal information concerning
the deceased testator’s next-of-kin in order to pass it on to
the attorney. The attorney required such information for the
purpose
of drafting a trust deed in accordance with the deceased testator’s
current will.
[28]
The attorney drafted the trust deed in due cause. The terms and
conditions of the contemplated trust were embodied in a 53
page
document, attached to the founding affidavit and labelled “anx
fa7”. The relief sought as per prayer 2 notice
of motion is
informed by this document. The entity would be known as
Eben-Haeser Trust. The creation of the trust inter vivo
was backed up
by all the parties, in other words, the first applicant and his
father as well as the first respondent and her daughters.
[29]
During November 2016 a family meeting was convened by the decased
testator. The meeting was attended by all parties as before.
At
that particular meeting the draft trust deed was tabled and
discussed. During the deliberations, not one voice of dissent was
heard in connection with the proposed creation of an of inter vivo
trust. There was an unquestionable acceptance by all and sundry
that
the draft trust deed would be signed and registered in due course. It
was in the minds of all concerned that all that would
be accomplished
during the cause of January 2017. However, the testator died on 17
January 2017 before the signing and registration.
The founding
deponent could find no formal correspondence wherein any of the
parties previously joined issue with the terms of
“anx fa6”.
On the contrary, he found cellular whatsapp messages which not only
suggested otherwise but rather lent
favourable support for the idea
of creating a trust and urgently finalizing the legal process.
[30]
According to the provisions of the draft trust deed, the landed
properties had to be transferred to the trust. After
the
testator’s death the respondents sommersaulted. They no
longer wanted to sign the draft trust deed in order to
have the trust
formally executed and registered. They adopted the incorrect view
that it was properly impermissible in law to have
property
transferred to an entity that did not exist.
[31]
The aforesaid view of the respondents offends the express wishes of
the deceased testator as set out in his last will and
testament.
Given their prior consent and willingness to have the Eben-Haeser
Trust created, the respondents were precluded from
sommersaulting and
singing a different tune now. This completes my summary of the
applicants’ case.
[32]
In their
answering affidavit
,
the respondents told a different story. Now I proceed to accordingly
summarise the essential features of their answer.
[33]
They maintained that there was no mutual family agreement as regards
the purported draft trust deed, “anx fa7”,
as alleged by
the applicants or at all. They pointed out that “anx fa7”
did not exist before 1 December 2016.
It will be recalled that
the applicants heavily rely on “anx fa7” in support of
the second relief - see 2 notice of
motion. According to them “anx
fa7” was only drafted on 20 January 2017, three days after the
demise of the testator,
on 17 January to be precise. Therefore,
they denied the allegation by the applicants that “anx fa7”
was discussed
at a family meeting held early during November 2016.
They specifically denied the following allegations made by the
applicants;
that a family meeting was held; that it was attended by
all the parties to the dispute that any document was presented to the
family
attendees and that any consensus concerning that document was
reached.
[34]
Attorney Jappie Coetzee, acting on the instructions he received from
Matty Lotter, the testator’s broker, amended a draft
trust
deed. Having done so, he sent the amended document to the broker. He
did so on 4 November 2016. The draft trust deed in question
was
evidenced by “anx aa9”. However, the first respondent,
the testator’s wife, was not prepared to be either
a donor or a
trustee of any trust as proposed in “anx aa9”.
[35]
Although it was further proposed, in the disputed draft trust deed
“anx fa7”, that the fourth respondent be appointed
as one
of the proposed trustees she did not and still does not have the
mental and physical capacities to act. She suffers from
delibit
cerebral palsy. As a result of such ailment, she is mentally
and physically impaired.
[36]
None of the relevant family members of the deceased testator liked
Matty Lotter. In the disputed draft trust deed, “anx
fa7”,
provision was made for his appointment as one of the trustees.
Everyone was against his appointment. Anyway, Matty
Lotter has since
died. Due to his death, his appointment as a trustee has practically
become impossible.
[37]
The case of the respondents, as I understand, is that there has been
no consensus in respect of “anx fa7” as pleaded
or at all
given that:
·
The
contemplated trust does not exist;
·
The
contemplated trust did not exist at the time the alledged founder or
creator died, on 17 January 2017 to be precise;
·
The
first respondent does not want to donate any of the farms to any
trust;
·
The
first respondent never really consented to be a donor in favour of
any trust;
·
The
persons whose names have been put foraward as The founding trustees
are either incapable or unable or unwilling to act as such.
·
The
draft trust deed, “anx fa7”, was not a true reflection of
the deceased testator’s wishes.
These
are, in my view, material considerations.
[38]
Now, the second leg of the relief sought by the applicants is to have
an inter vivo trust created and registered. An inter
vivo trust is
purely contractual according to our law.
Crooks
NO and Another v Watson and Others
1956 (1) SA 277
(A);
Hofer
and Others v Kevitt NO and Others
[1997] ZASCA 79
;
1998 (1) SA 382
(SCA) and
Potgieter
and Another v Potgieter NO and Others
2012
(1) SA 637
(SCA).
[39]
The authors, Cameron et alii in their work.
Honore’s
South African Law of Trusts,
fourth edition page 557 have this to say about inter vivo
trusts:
“
They
are created by contract
,
by statute or by the court. No question can arise as regards
the validity of a trust created by statute nor is one likely
to arise
when the court sets up a trust. Should it do so, the proper law
would clearly be that of the court’s area.
So
far as trusts created by contract are concerned they will not be
valid unless the contract creating them is itself valid
.
As regards capacity a person capable of contracting by the law of the
place of contracting (
lex
loci contractus
)
is regarded as having the necessary capacity, and possibly capacity
by the law of the parties
domicile
is also
sufficient. The contract is formally valid if it satisfies the
law of the place of contracting or the proper law of
the contract”
(the
highlights are mime)
[40]
In the instant matter, it is undisputed that the accepted Inter vivo
trust whose registration is sought was created by contract;
that the
contractants thereto had to be the creator and the trustees; that the
creator has since died; that all those contracting
parties had to
have the requisite capacity to contract; that the fourth respondent
suffers from delibitating cerebral palsy;
that such ailment has
mentally and physically impaired her ability to act as a trustee and
that, she declined her nomination on
account of her incapacity.
[41]
It follows, therefore, that according to the
lex
loci
contractus
the
fourth respondent was incapable of contracting. That being the case,
the contract for the formation of the trust, in which she
was
involved, if she ever was, was rendered invalid by her lack of
capacity to contract
Cameron
et
ali,
supra
.
It was incumbent upon the applicants to prove that essential elements
for the formation of a valid inter vivo trust were present.
They
failed to discharge the onus. It is our law and it has always been
our law that an inter vivo trust created by contract will
not be
valid unless the contract whereby it is created is itself valid –
Cameron
et
alii, supra
.
[42]
The fourth respondent’s lack of mental capacity aside. It is
also common cause that apart from the deceased creator,
one of the
supposed parties to the disputed trust agreement has since died. At
this moment in time the reality is that two of the
five would be
trust contractants are dead, two are disinterested and one is legally
incapable to enter into valid contract.
[43]
In their
replying affidavit
the applicants raised the following pertinent issues: that the bottom
line of the testator’s wish was to create a trust and
that it
was, therefore, of no moment whether his last will provides for the
creation of an inter vivo trust or testamentary trust;
that, at
any rate, whether he intended to create the one or the other type of
a trust entity was a distinction without a difference;
that the
intention of the deceased testator was to bequeath the farms to the
Eben-Hauser Trust and that nothing else could be deduced
from the
will; that he did not wish to transfer them to the first
respondent; that the dying wishes of the deceased
testator were
overriding considerations and that they should be carried out
notwithstanding lack of consent on the part of the
respondents to
have a trust established in accordance with such final wishes; that
the unyielding attempt by the respondents to
show that they did not
want consent to the establishment of a trust was an irrelevant
criteria.
[44]
Mr Snellenburg argued that the aforesaid pertinent aspects of the
applicants’ reply showed that they had changed tact
in their
replying affidavit because the case they sought to make in
their founding affidavit had been comprehensively widely
refuted by
the respondents. I am of the view that there was substance in the
argument.
[45]
The deceased testator had by way of his previous but now revoked
will, initially intended to bequeath the three farms
to a mortis
causa trust. However , he subsequently revoked the previous will. He
then decided, by way of his last will, to
bequeath the same farms to
an inter vivo trust. He did so pursuant to a financial advice
given to him by a broker, the late
MS Lotter, aka Matty
[46]
It was given to understand, by both counsels, that the shift from
mortis causa trust to inter vivo trust was the real major
difference
between the previous will and the current will. The deceased testator
elected to change the vehicle through which the
farms were to be
transferred to the ultimate beneficiary. Certainly the change was
cosmectic but fundamental. It was express election
deliberately and
purposefully made. The deceased testator, by exercising such an
election, consciously renounced his previous intention
to bequeath
the farms to a testamentary trust. As I see it, if creative
change from a testamentary trust to an
inter
vivo
trust
was a mommental paradigm shift in the founder’s mindset.
It was certainly not a meaningless exercise.
[47]
The deponent for the applicants, Attorney Jannie Hamilton, had this
to say about the two types of trust entities:
“
What
was foreshadowed in the will is the bequest of the farm to the
trust.
Whether
it is treated as an inter vivos trust or a testamentary trust (given
the terms of the trust deed) is a distinction without
a difference
.”
(my
emphasis)
[48]
I do not share that view, with respect. There is a fundamental
difference between an inter vivos trust as foreshadowed in the
final
will and a testamentary trust as foreshadowed in the previous will.
The contention by the applicants that there is no fundamental
diference between the two types of legal instruments is materially
flawed. As a result of their misconceived contention, I deem
it
necessary to unpack the distinctive featres of the two types of
trust.
[49]
As regards a trust mortis causa, it can be created in the will of a
testator. It is also commonly known as testamentary trust.
It
essentially constitutes a testamentary disposition. As such the
testamentary instrument whereby a trust mortis causa is created
has
to be validly executed in accordance with the requisite prescripts
and formalities prescribed by sec 2 Act No 7 of1953, the
Wills Act.
[50]
Since a trust mortis causa is provided for and embodied in the will,
it is a voluntary and a unilateral minute of a testator’s
final
wishes and directions concerning the ultimate disposal and
distribution of his assets after his death. It follows, therefore,
that being a mode of testamentary disposition, the creation of a
trust mortis causa is a purely unilateral act by the testator
based
on the doctrine of freedom of testation. Put differently, it is not a
bilateral legal act or contract.
[51]
As regards a trust inter vivo, it is cretated by means of of a
bilateral act. It essentially constitutes a contractual mode
of
disposition. As such the contractual instrument whereby a trust inter
vivo is created has to be validly executed in accordance
with the
requisites and prescripts of the Trust Property Act in particular and
the law of contracts in general.
[52]
Because a trust inter vivo is a bilateral agreement, it is provided
for in a separate document outside a will. It was described
by the
court as something akin to
stipulation
alteri
in
other words a contract for the benefit of a third party.
Joubert
v van Rensberg
2001 (1) SA 753
(w) 768A-C between the founder and the trustees for
the beneit of the specific beneficiaries
Crookes
NO v Watson
1956 (1) SA 277
(A)
Potgieter
v Potgieter
,
supra
and
Hofer
and Others v Kevitt NO
supra
.
[53]
Given the aforesaid comparative and distinct elements of
a trust mortis causa on the one hand vis-à-vis
a trust inter
vivo on the other hand , it cannot be concluded, as the applicants
did, that the distinction between the two types
is a distinction
without a difference. Consequently, they are precluded from
contending that what was foreshadowed in the final
will as was in the
previous will was the creation of a trust irrespective of whatever
type it might be contention. Their founding
contention was that the
deceased testator, acting on the financial advice of the broker,
ultimately wished and decided to create
a trust inter vivo as
mirrored in “anx fa6”. That was the pith and narrow
of their founding case. To that case
they have to be held since their
replying contention is at odds with their founding contention. They
are blowing hot and cold.
According to the motion rules of
engagement, it is impermissible to do so.
[54]
It has been opined that even a valid “will” will fail to
the extent that:
“
a)
A beneficiary is incapable of taking a benfit under it;
b)
The testator revokes it before his death;
c)
A disposition contained in it is a
nodum praeceptum
, illegal,
impossible, uncertain or subject to an unfulfilled condition;
or
d)
A beneficiary does not adiate.”
See
Joubert: The Law of South Africa Vol 31 p171.
[55]
The beneficiary’s capacity to benefit under the provisions of a
will must exist at the time of vesting, and also at the
time of
accepting the benefit so bequeathed. Anyone, natural or juristic,
born or unborn , is capable of accepting or taking, a
benefit
bequeathed to him or her it in terms of a will unless such
beneficiary does not exist at the time of the vesting
of such
interest on the beneficiary LAWSA
supra
p165.
[56]
In this instance, it was contemplated that Eben- Haeser Trust would
become a beneficiary of a trust inter vivo; that there
would be a
creative founder; that there would be willing and capable trustees;
that the founder and the trustees would agree on
a range of terms and
conditions essential for the formation of such a trust inter vivo.
The founder to be died before such agreement
was concluded. It
follows, as a matter logic, that absent such a bilateral agreement
between the contracting parties, the
contemplated trust inter
vivo has yet to come into existence.
[57]
Consequently, at the time of vesting, being the day the testator or
founder died, Eben-Haeser Trust, as the unborn beneficiary
to be, did
not legally exist. It had no capacity to benefits because it did not
exist. Therefore, it cannot,in law, receive any
benefit in terms of
the deceased testator’s last will. We are not talking of
a beneficiary who exists but for some
reason is incapable of taking
benefits. What we have here is nothing but a fiction. In the absence
of a beneficiary, founder, and
trustee and a bilateral contract, it
is absurd to seek the relief as set out in 2 notice of motion.
[58]
The intention of the deceased testator does not, and did not, clothe
the fictitious trust with the legal capacity it did not
have in law
to benefit in terms of the will in view of the absence of a bilateral
agreement. Given all the material considerations,
I am of the view
that the distinction between trust mortis causa and trust inter vivo
is so fundamentally profound that it cannot
be ignored or
underplayed. The contention of the applicants in this connection was
misplaced. The legal position expounded above
dictates that the
bequest of the immoveable farming properties to the trust should
fail.
[59]
In
Potgieter
, supra, the court
a
quo
ventured to give effect to the deceased testator’s wishes at
all costs. There the trust deed and the deceased testator’s
testament were demonstrably in conflict. The court a quo reckoned it
should have the power to circumvent the trust deed on the
ground that
the testamentary intent should override the trust instrument.
[60]
Writing for the unanimous court on appeal, Brand JA cautioned the
courts against seeking authority to avoid failure of a testamentary
bequest where the inevitable result in law is that the deceased
testator’s intention cannot be given effect to He wrote:
“
In
addition, the reason why our law cannot endorse the notion that
judges may decide cases on the basis of what they regard as
reasonable and fair, is essentially that it will give rise to
intolerable legal uncertainty. That much has been illustrated by past
experience. If judges are allowed to decide cases on the basis of
what they regard as reasonable and fair, the criterion will no
longer
be the law but the judge.”
[61]
The applicants also relied on the
ad
pias causa
principle in support of the second leg of the relief they sought. Mr
Viljoen argued
“
Such
contention would in any event have been contrived our courts have
regularly dealt with a bequest to a non existent entity.
Although
such bequest may be said to ordinarily fail, the Courts will try to
avoid such result when the bequest is
ad
pias causas
.”
In
Ex Parte Estate Burnand
1949
(3) SA 432
, the bequest was made to a certain Children’s T.B
Hospital and Our Dumb Friends League, Durban. The executor could not
find
any institution able to answer to such name. The Court held that
this is not an insurmountable hurdle in the path of devolving such
bequest on a similar institutions, in honouring the deceased wishes.
In
Ex Parte Blum : In Re Estate Kalson
1964
(2) SA 643
, a Similar situation presented itself. The Court allowed
the bequest to devolve upon a similar charity. The Courts reasoning
was to devote the money to a particular purpose, rather than a
particular institution, in seeking to give effect to the wishes
of
the deceased.”
[62]
I have considered the above authorities. However, I came to the
onclusions that the facts of the instant matter were distinguishable
from those of the decided cases relied upon. This was so because:
62.1
In
this matter the will does not provide for a testamentary disposition
to a charitable organization. For that reason the
cy-pries
doctrine
is not applicable to the facts of the instant matter.
62.2
The supreme decision in
Kohlberg
v Burnett NO and Others
1986 (3) SA 12
(A) at 15C-E is dispositive of the applicants
argument. The Court held:
“
Therefore,
the court incorrectly equated “trusts created for the support
and development of education institutions such as
universities and
schools” with an
inter
vivos
trust. The former are essentially voluntary associations
(whether incorporated or not) although, in certain cases, the
administering body may be called “trustees”.
Furthermore, the instances mentioned by the Court
a
quo
fall into the category of bequests ad pias causa”
62.3
Neither the facts nor the legal principles in the instant instant are
comparable to those in the cases referred
to and relied upon by the
applicants. On the perculiar facts of this particular matter, there
can be no serious debate that the
deceased testator intended to
create a
trust
inter vivo
,
not a
trust
mortis causa
and not a bequest ad pias causa.
[63]
In
Ex
Parte Pienaar
1972 (4) SA 19
(W) 20 the court wrote about the import of the
cy-partés
doctrine
:
“
It
is necessary first to establish what the overriding and transscendant
purpose of the trust was in order to decide whether the
cy-prés
doctrine
will apply. It can only be applied if the trust was one
ad
pias causas
.
“
a
term which, owing to the wider meaning it has acquired in the course
of the lapse of centuries as above explained, might, I think
now with
advantage be superseded by the expression ‘for charitable
purposes.”
[64]
The purpose of the last will of the deceased testator was not to
bequeath the farms to any entity for a charitable cause.
This
needs no debate. The applicants did not contend otherwise. The
cy-pries
doctrine
can only find application where a testamentary bequest, intended to
devolve upon a particular charitable organization, fails. A
bequest may fail for various reasons. Among others, it may fail
because, such organization has since been dissolved, and
the court
subsequently alters such a testamentary clause so that such bequest
devolves upon another chartable organization with
a purpose similar
to that of the charitable organization for which the bequest was
originally intended.
[65]
It follows from the above that the
cy-pries
doctrine
can only be applied and implemented when such other charitable
organization with a similar purpose exists. In other words, the
doctrine cannot be invoked and relied upon in order to make a bequest
devolve upon a charitable organization which does not exist
in law.
Earlier on, I was at pains to demonstrate that a trust inter vivo by
the name of Eben- Haeser Trust does not exist. The
non- existence is
due to lack of consensus among the would-be contractants thereto.
[66]
Lastly, I deem it necessary to refer to clause 4.1.1.1 “anx
aa3” or “anx fa7” if you will. It
reads:
“
Die
Testateure bepaal dat die Trustees van die te stigte Trust sal
toesien dat die huisvesting gebruik sal word soos dit tans die
geval
is”
This
clause is not entirely inconsistent with the contention that the
deceased testator did not intend to bequeath the farms to
the
surviving spouse.
[67]
Given the perculiar circumstances of this particular case, I am
persuded that “anx fa7”, which is the same decoument
as
“anx aa3” cannot, for the reasons given above, be
regarded and treated as a valid draft trust instrument. That being
the case, it cannot now, by an order of court, be signed and
registered. In the light of all the reasons already given, I am
inclined
to dismiss the application.
[68]
The respondents have successfully resisted the relief sought. There
is no sound reason why the general rule of costs Should
not apply.
The costs should, therefor follow success.
[69]
Accordingly I make the following order
69.1
The application is dismissed;
69.2
The applicants are directed to pay the costs of the
respondents including the costs consequent upon employment
of two
counsels.
_______________
MH
RAMPAI, J
On
behalf of the applicants:
Adv JC Viljoen
Instructed
by:
Mcintyre Van Der
Post
Bloemfontein
On
behalf of the respondent:
Adv N Snellenburg
with
him
Adv S Tsangarakis
Instructed
by:
Director of Public
Prosecutions
Bloemfontein