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[2018] ZAFSHC 185
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Van Pletzen and Another v Coetzer and Others (526/2017) [2018] ZAFSHC 185 (6 December 2018)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 526/2017
In
the matter between:
MARIA
MAGADALENA VAN
PLETZEN
1
ST
Plaintiff
MAGDELT
MAGDALENA
KOTZE
2
ND
Plaintiff
and
STEPHANUS ISAIAS
COETZER
1
ST
Defendant
PIETER HERMANUS
COETZER
2
ND
Defendant
ZACHARIA GERHARD
THEUNIS COETZER
3
RD
Defendant
JUDGMENT BY: MHLAMBI
J,
HEARD ON:
23 & 24 OCTOBER 2018
DELIVERED
ON:
06 December 2018
MHLAMBI,
J
[1]
The plaintiffs each claimed from the first defendant, payment in the
amount of R 1 400 000.00
[1]
;
alternatively, the same amount from all three defendants jointly and
severally, the one paying, the others to be absolved; in
the further
alternative, from first and second defendants
[2]
;
alternatively from each of the three defendants jointly and
severally, the one paying the others to be absolved, judgment in the
amount of R 262 419.63 together with interest and costs.
[2]
The plaintiffs and defendants are the natural children of Stephanus
Isaias Coetzer and Magdelt Magdalena Coetzer, who were married
in
community of property; the registered owners of a 5/6 share of the
farm “
Bothasrand”
,
a 5/5 share of the farm “
Zoetvlei
”
and 5/6 share of the farm “
Aloedal”
situated in the district of Rouxville. On 16 September 1977, the
married couple executed a joint will in terms of which the three
farms
[3]
were bequeathed to the
three defendants subject to the life usufruct of the testatrix,
Magdelt Magdalena Coetzer over the three
properties. Clause 4(ii)
[4]
stipulated that all three properties should be valuated at the death
of the testatrix and the pro rata valuation of each of the
mentioned
bequests be paid out by each of the defendants to the plaintiffs in
equal shares, so that all five children could inherit
equally in
respect of the fixed property.
[3]
The testator died on 13 November 1979 and the testatrix on 17 June
2015. The testator’s estate was administered and the
executor
of the estate discharged by the Master in terms of section 56 of the
Administration of the Deceased Estates Act ( the
Act). The first and
final liquidation and distribution account was approved and accepted
by the Master in consequence of which
the three farms were
transferred and registered in the names of the defendants subject to
the provisions of the will of 16 September
1977.
[4]
The plaintiffs’ main claims are based on a valuation of the
three farms as at 17 June 2015 to the amount of R 8 100 000.00
[5]
which was reduced to R 7 000 000.00 to indicate the value
of the actual land. The first and third defendants resisted
the
claims, pleading lack of
locus
standi
on
the part of the plaintiffs and that only the executor of the estate
could institute a claim based on the will. They contested
the
correctness of the valuation attached to the particulars of claim as
they alleged that such valuation included the renovations
brought
about by the first and third defendants on the properties after their
transfer.
[5]
The first and third defendants pleaded that the plaintiffs and all
three defendants entered into a written agreement on 15 February
2011(the 2011 agreement) at Rouxville, in terms of which the
valuation of the farms, whose proceeds would be used to pay both
plaintiffs in terms of the will, was fixed and accepted by the
parties
[6]
. In terms of this
agreement, the first defendant was indebted to each of the plaintiffs
in the amount of R 134 250.02 and
the third defendant indebted
to each of the plaintiffs in the amount of R 20 465.58. The
defendants tendered furthermore to
pay to the plaintiffs mora
interest on the tendered amounts plus taxed costs calculated 15 court
days from the date of the filing
of the plea.
[6]
The plaintiffs and the second defendant settled their dispute on the
morning of the trial and the trial proceeded only as against
the
first and third defendants. At the inception of the trial, an order
was sought in terms of paragraph 5 of the Rule 37 minute
which
entailed that all the disputes as per the pleadings, would be
adjudicated upon first save the plaintiffs’ valuation
as
computed and contained in paragraphs 6.2 to 6.7 and 9 of the
particulars of claim. These would be adjudicated upon at a later
juncture.
[7]
Mr Benade, on behalf of the plaintiff, submitted that in his opinion,
the trial revolved around two questions, namely: whether
the 2011
agreement was valid and enforceable; if valid, whether it was validly
cancelled in the replication.
[8]
Both plaintiffs testified in support of their cases. The first
plaintiff testified that the executor of the estate, one Gustav
van
Straaten, was duly discharged in terms of the Administration of
Deceased Estates Act and that he was since deceased. An agreement
was
reached with the defendants in 1986 to have the farms registered in
their names to serve as security with the banks. The farms
were duly
transferred into the defendants’ names. Their mother died on 17
June 2015. The first plaintiff signed the 2011
agreement but did not
regard it as binding because the rights emanating from the will did
not vest in the heirs as the parties’
mother, the testatrix,
was still alive. Furthermore, the defendants did not comply with the
agreement or tender any payment but
tried to delay payments in terms
of the agreement until the summons was issued.
[9]
She met the first and third defendants in July 2016 who enquired from
her whether she had received the contract from Fouche
attorneys. The
attorneys handled the testatrix’ estate. The attorney had given
her an unsigned agreement (which was signed
neither by the plaintiffs
nor the defendants). She was not prepared to accept it unless
corrections were made to certain paragraphs.
Even though she signed
the 2011 agreement, she was of the opinion that it was against the
provisions of the will. She never demanded
payment nor placed the
defendants in mora in terms thereof. She only gave notice of its
cancellation to the defendants by way of
the replication contained in
the pleadings. She rejected the defendants’ offer or tender of
the payment of R262 419.63 which
was made to her during
cross-examination. The real problem, according to her, was the
defendants’ refusal to pay the escalation
and interest even
when they were confronted with the 2016 contract.
[10]
The second plaintiff confirmed her signature on the 2011 contract and
the previous agreements which were concluded to enable
the defendants
to secure financing from the banks. She testified that the parties
agreed on the day of the memorial service of
the testatrix that the
defendants would be given a year within which to finalise the
agreement and payments due to the plaintiffs
(despite the first
plaintiff’s suggestion of nine months). She was the author of
the “whatsapp” message of 16
June 2016 at 19:04 addressed
to the first defendant which read as follows
: “ Magda Kotze:
Hi. Bel my asb. Wil graag weet wat met boedel aangaan. Drie
jaar is nou verby en ons het ‘n mondelingse
ooreenkoms gehad
dat alles nou afgehandel sal wees. Laat weet my asb. Ek het jou
probeer bel.”
She did not sign the concept agreement from
Fouche attorneys as the terms were vague. The defendants refused to
pay anything
as indicated in their Plea on page 135 of the Exhibit
bundle. According to her, the replication cancelled the agreement of
2011
due to unfulfilled promises by the defendants.
[11]
She still considered herself to be bound by that agreement as at 16
June 2016 and would have accepted the suggested amount
of R262
419.63. Neither a letter of demand nor a notice was given to the
defendants in terms of the agreement. In cross-examination,
she
stated that she sent the “whatsapp” message to the first
defendant as a reminder. She conceded that should the
court find that
the agreement was valid, she would not dismiss the offer of the
payment of the amount of R262 419.63.
[12]
The plaintiffs closed their cases. The defendants also closed their
case without adducing any evidence. Both parties presented
brief
heads of argument and oral submissions.
[13]
Mr Benade submitted that clause 4(ii) of the will was a modus
provision in that the farms were given in legacy to the three
sons
subject to the modus that at the death of the mother, the sisters
would be paid a certain amount of money. He relied on
Bydawell
v Chapman
[7]
and
Fyfe v Estate Poynton
[8]
as support for his contention that the plaintiffs’ rights had
not accrued to them as at the time of the conclusion of the
2011
agreement and that such agreement modified the will. Non- compliance
with clause 4 of the 2011 agreement was neither pleaded
in the
defendants’ first plea of 8 September 2017 nor in their second
plea of 17 January 2018.
The
conduct of the defendants constituted a repudiation of the contract
in the form of an anticipatory breach of the contract or
in
the form of repudiation.
[14]
Should the court find that the agreement was valid, it was contended
that the plaintiffs had complied with the giving of notice
as
required by clause 4 of the 2011 agreement in that
[9]
:
1. The second plaintiff
testified that she sent a written whatsapp massage on 20 June 2016 to
the first defendant;
2. It was clear from the
email from Horn and Kumm Attorneys dated 11 July 2016 (in which a
draft agreement was forwarded to Magda,
the second plaintiff, for
consideration) that the first and third defendants knew that the
plaintiffs demanded performance;
3. The plaintiffs
cancelled the agreement in their replication when they accepted the
defendants’ repudiation thereby cancelling
the agreement.
[15]
Save for the brief submissions on
locus
standi
,
Mr Reinders, on behalf of the first and third defendants, submitted
that should the court find that the plaintiffs had a personal
right
against the defendants to claim payment on the basis of the
modus,
it was
common cause that during the eighties, the defendants received
transfer of the property by the executor and that the executor
was
discharged in terms of section 56 of the Act. The executor could only
have been discharged if he had completed the administration
of the
estate to the satisfaction of the master. The defendants became full
owners of the properties on registration of the properties
into their
names and the amounts to be paid to their sisters (the plaintiffs’)
were not to be made from the estate itself
but were to be received
from the defendants personally. It was common cause that the parties
signed the agreement and understood
its implications at a time when
the
modus
already
existed and was contingent upon the death of the mother. The parties
were free to contract and the 2011 agreement was not
a redistribution
agreement which the executor and the master had to confirm. It was
not necessary as the estate of the deceased
was finalised and the
plaintiffs’ claims were personal rights based on the
modus
[10]
.
The
defendants had already received what they must have received in terms
of the will and the only duty upon them was the payment
of a certain
amount on the death of the testatrix. The parties merely agreed as to
how that amount would be computed and placed
a value thereon as they
were entitled to. There was no need for the master to approve it as
there was nothing that was redistributed
between the parties. I agree
with this view.
[16]
He submitted further that the agreement had a specific clause that
required any of the parties to give the other party notice
if that
party appeared to be in breach thereof. Neither of the plaintiffs
gave notice in terms of the contract of their intention
to cancel it
due to non-performance. In this regard I was referred to a number of
decisions which stated that where a party relied
on a cancellation
clause, he is required to give a written notice to the other party to
remedy such breach in order to succeed
with the claim. The plaintiffs
never complied with clause 4 of the 2011 agreement and the defendants
were entitled to oppose the
claims on the basis of the pleadings as
they stood.
[17]
It would appear that the plea of
locus standi was
either
overtaken by events or was raised solely as a result of the manner
the claimants’ pleadings were drafted. It is common
cause that
both the executor and the testator had passed away and the master had
approved the final liquidation and distribution
account. Besides, the
executor had received his discharge in terms of section 56 of the
Act. It was also obvious that this part
of the argument was not
vigorously pursued as the main thrust of the defence was the reliance
on the written agreement of 2011.
I find that this argument is not
pertinent to the issues at hand and shall therefore, save for what
was said above, traverse it
any further.
[18]
Having regard to clause 4(ii) of the will, the pleadings and the
submissions of all the parties, it is common cause and undeniable
that a modus was created in the will in terms whereof the defendants
were obliged to pay certain amounts of money to the plaintiffs
upon
the death of the testatrix. The immediate question that arises is
whether a binding agreement between the parties arose as
at 15
February 2011. The plaintiffs held the view that the agreement was of
no force and effect as it intended to alter the devolution
of the
estate. The authorities I was referred to in this regard by Mr
Benade, do not assist the plaintiffs’ case in any manner
whatsoever as both are distinguishable from the present case on both
facts and the law. In
Bydawell
, supra,
the family
agreement sought to vary the terms of the will and purported to
effect substantial deviations from the testator’s
dispositions,
thus jeopardising,
inter alia
potential rights of heirs. In
the present case, the rights of the parties are not affected, but the
manner or direction as to the
equal distribution of the fixed assets
to the heirs. In
Fyfe
, supra,
it was held that a
plaintiff’s husband at the time of his death had no vested
interest in a property which he could bequeath
to the plaintiff and
that he had not acquired such an interest under the terms of the
family agreement.
In casu
, the plaintiffs had a personal right
enforceable as against the defendants, the latter as beneficiaries
who inherited under the
will. As at 15 March 2011, the defendants had
ownership of the properties and the plaintiffs had personal rights as
against them.
[19]
A family agreement cannot lawfully vary the terms of a will
[11]
.
The terms of the agreement of 2011 are not opposed to the express
provisions of the will. Beneficiaries of full capacity may freely
renounce, waive or dispose of their rights under the will, and every
party who so waived or disposed of his rights cannot complain.
Parties may contract to render to each other the fruits of the
devolution, if and when they mature or accrue, but cannot alter
the
devolution by contract
[12]
.
[20]
Clause 4 of the 2011 agreement provides that should any party breach
any term of the agreement and fail to remedy such breach
within 7
days of having been given written notice to do so, the other party
shall be entitled to cancel the agreement. The plaintiffs
failed to
give the required notice for the cancellation of the agreement. The
reasons advanced by the plaintiffs for the termination
of the
agreement fall far short of a genuine desire to so cancel the
agreement
[13]
. It was
submitted in the plaintiffs’ heads that such a clause did not
need to be complied with when the conduct of the defendants
constituted a repudiation of the contract, or was in the form of
anticipatory breach of the contract or in the form of
repudiation
[14]
and reference
was made to
Metalmil
v AECI
[15]
.
[21]
The plaintiffs’ case for repudiation by the defendants
[16]
was
that since 2015 they did not perform in terms of the 2011 agreement
by making payments. This is in stark contrast with the second
plaintiff’s testimony that the defendants were given a year’s
grace to fulfil their obligations. It was argued that
they did not
perform in terms of the said agreement within a reasonable time after
June 2015 (20 months passed since June 2015
to February 2017). They
neither paid after the summons was issued in February 2017 nor
tendered payments in their August/September
2017 pleas in accordance
with the 2011 agreement. It would seem as if the plaintiffs lost
sight of the fact that the summons had
to be amended twice by the
plaintiffs as a result of the defendants’ filing of Rule 23(1)
notices to the plaintiffs’
particulars of claim as being vague
and embarrassing especially in respect of the periods and
calculations of the valuations, which
are still in dispute. On the
consideration of the plaintiffs’ testimony and their conduct,
it is evident that they were under
a misconception as to the approach
and what they expected to get from the transactions.
[22]
In the light of the above, I find that the 2011 agreement is valid
and enforceable. The replication and the other reasons advanced
were
insufficient for its cancellation.
[23]
I therefore make the following order:
Order
23.1 The main claims of
the plaintiffs are dismissed;
23.2 It is declared that
the first and third defendants are liable for such amount still to be
determined (excluding any liability
of the second defendant);
23.3 Plaintiffs to pay
the costs occasioned by the trial on 23 and 24 October 2018;
23.4 The matter is
postponed to the next available Rule 37(8) pre-trial conference.
___________
MHLAMBI,
J
Counsel
for the defendant: Adv HJ Benade
Instructed
by: Van Wyk & Preller Attorneys
:
67 Press Paul Kruger Street
:
Universitas
:
Bloemfontein
Counsel
for Respondents: Adv S Reinders
Instructed
by: Symington & De Kok Attorneys
:
169B Nelson Mandela Drive
:
Westdene
:
Bloemfontein
[1]
Pleadings bundle page 15
[2]
Pleadings bundles page 16
[3]
Pleadings bundles page 20
[4]
Pleadings bundle page 20
[5]
Pleadings bundle page 11, para 6.2
[6]
Pleadings bundle page 57
[7]
1953(3)
SA 514 (AD) at 523F-H
[8]
1926
AD 326
at 332
[9]
Plaintiffs
head of arguments page 6, para 4
[10]
Webb
v Davis N.O. and others
[1998] ZASCA 10
;
1998 (2) SA 975
(SCA) at 983
[11]
Bydawell,
supra
[12]
Bydawell
page 523 para G-H
[13]
Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (1)
SA 161 (SCA)
[14]
Plaintiffs’
heads of argument page 7
[15]
[1994] ZASCA 96
;
1994
(3) SA 673
(AD) at 683H
[16]
Plaintiffs
heads page 9 para 6.3