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[2016] ZAFSHC 230
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Haskins v Lee N.O. and Another (3800/2015) [2016] ZAFSHC 230 (2 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
I
N
THE
H
I
GH COURT OF SOUTH
AFRICA
FREE
STATE
D
I
VISION,
BLOEMFONTE
I
N
Case
No. 3800/2015
In
the matter between:
DAVID
HASKINS
Plaintiff
and
SHIRLEY
MARGARET LEE N.O.
1
st
Defendant
THE
MASTER OF THE FREE STATE
HIGH
COURT
N.O.
2
nd
Defendant
CORAM:
VAN ZYL, J
DELIVERED
ON:
2 DECEMBER 2016
[1]
The plaintiff instituted action against the first defendant in her
capacity as executrix of the estate of the late Adelaide
Marion
Haskins (referred to in the pleadings as "the deceased”)
the mother of the plaintiff, who died on 18 January
2015. The second
defendant is cited in his/her official capacity and no relief is
claimed against the second defendant. The plaintiff
is the sole
surviving child of the deceased and Peter Clarence Haskins (referred
to in the pleadings as "Haskins"), who
died on 27 June
1999, the deceased and
Haskins having been
married
in community of property.
[2]
The averments in the particulars of claim constituting the
plaintiff's cause of action are the following:
"5.
During
the period 1968 to 1999 the plaintiff, Haskins and the deceased
concluded an oral agreement which was orally confirmed from
time to
time at the home of Haskins and the deceased situated at [...] K. S.,
Harrismith, Free State.
6.
In
entering into the agreement:-
(a)
The plaintiff acted in person; and
(b)
Haskins and the deceased acted personally, alternatively,
(c)
Haskins acted on behalf of the deceased and himself in his capacity
as administrator of the joint estate subsisting between
him (Haskins)
and the deceased at the time.
7.
At
all material times hereto and at the time the agreement referred to
was concluded and confirmed from time to time, Haskins and
the
deceased were experiencing financial hardship.
8.
Express,
alternatively implied, further alternatively tacit terms of the
agreement were as follows:-
(a)
The plaintiff would assist his parents, Haskins and the deceased,
financially from time to time; and
(b)
The amounts expended by the plaintiff aforesaid would be repayable on
the death of the survivor of Haskins and the deceased
by:
(i)
The plaintiff lodging a claim for such expenses against the estate of
the survivor of Haskins
and the deceased; alternatively
(ii)
The plaintiff inheriting the estate of the survivor.
9.
The
aforesaid agreement was orally confirmed on numerous occasions during
the lifetimes of Haskins and the deceased and with the
deceased after
the death of Haskins.
10.
Pursuant
to the agreement the plaintiff advanced money to Haskins,
alternatively, the deceased, further alternatively to third parties
on their behalf as set forth in the schedule annexed hereto marked
'DH2' read with the schedules attached thereto which set forth
particulars of the various payments made.
11.
The
plaintiff claims repayment of the sum of R876 166,30 as set forth in
annexure 'DH2' annexed hereto.
12.
The
amount claimed in this action became due and payable on the death of
the deceased on 18 January 2015.
13.
The
plaintiff has submitted his claim for the payments claimed in this
action to the first defendant.
14.
The
first defendant has rejected the plaintiff's claims.
WHEREFORE
the plaintiff prays for judgment
against the first defendant
for:-
1.
An order directing the first defendant to admit the plaintiff's claim
against estate late Adelaide
Marion Haskins in the sum of
R876 166,30 and to reflect such claim in the liquidation and
distribution account in the
said estate.
2.
Interest thereon at legal rate from 18 January 2015 to date of
payment.
3.
Costs of suit."
[3]
The second defendant did not defend the action, but duly filed a
report indicating that the second defendant does not wish to
defend
the action and abides by the decision of the court.
[4]
The crux of the first defendant's defence to the plaintiff's claim as
pleaded in the first defendant's plea in response to the
plaintiff's
particulars of claim is the following:
"5.
AD
PARAGRAPHS
5, 6, 7,
8
AND
9 THEREOF:
5.1
The first defendant does not have knowledge of the contents of the
paragraphs, consequently
denies the contents thereof and puts the
plaintiff to the proof of each and every averment contained therein.
5.2
Without derogating from the generality of the aforesaid denial, and
in the event that
the Honourable Court finds that the deceased and
the plaintiff concluded the agreement, as alleged, then and in that
event the
first defendant pleads that:
5.2.1
The agreement had its purpose to fetter the deceased's freedom of
testation;
5.2.2
The agreement constitutes a
pactum successorium;
5.2.3
The agreement is invalid and void
ab initio.
6.
AD
PARAGRAPHS 10, 11 AND 12 THEREOF:
The
first defendant does not have knowledge of the contents of the
paragraphs, consequently denies the contents thereof and puts
the
plaintiff to the proof of each and every averment contained therein.
7.
AD
PARAGRAPH 13 THEREOF:
Save
to admit that the plaintiff submitted a claim in the amount of R879
439,34, the first defendant denies that the first defendant,
as
executrix of the estate of the deceased , is indebted to the
plaintiff in the amount of R879 439,34 or any sum thereof.
8.
AD
PARAGRAPH 14 THEREOF:
The
first defendant admits having rejected the plaintiff's
claim, which rejection was justified.
9.
The
first defendant therefore
prays that the plaintiff's
claim be
dismissed, with costs."
[5]
The plaintiff filed a replication in response to the first
defendant's plea, which reads as follows:
"1.
AD
PARAGRAPH 5.2 OF THE FIRST DEFENDANT'S PLEA:
The
plaintiff:
(a)
denies each averment contained in paragraph 5.2 of the first
defendant's plea;
(b)
replies that the agreement in no way fettered the deceased's freedom
of testation;
(c)
replies that deceased retained the power to dispose of her assets in
her Last Will and Testament as she saw fit;
(d)
replies that the deceased in fact exercised such power in that she
did not bequeath anything whatsoever to the plaintiff
in her Last
Will and Testament.
2.
The
plaintiff joins issue.
WHEREFORE
the plaintiff persists in his prayer for relief as claimed in the
particulars of claim."
[6]
At the inception of the hearing I was requested by Mr De Beer,
appearing on behalf of the plaintiff, and Mr Pienaar, appearing
on
behalf of the first defendant, to issue an order in terms of Rule
33(4) by agreement between the parties, in terms of a draft
order
which they handed to me. After perusal of the said draft order, I
made an order in terms thereof:
"1.
The issues in respect of the merits and the quantum of the
plaintiff's claim is separated in terms of the provisions
of Rule
33(4) on the basis that the following issues shall be adjudicated
first, and the remainder of the issues to stand
over for later
adjudication:
1.1
Whether the plaintiff and Mr Peter Clarence Haskins and Adelaide
Marion Haskins
have concluded the agreement as pleaded in paragraphs
5 to 9 of the particulars of claim; and
1.2
If it is found that the agreement was concluded, whether the
agreement is invalid
and void
ab
initio
as
pleaded in paragraph 5.2 of the first defendant's plea."
[7]
Four bundles of documents were handed to me. Mr De Beer indicated
that the plaintiff's bundles 1 and 2 contain documentation
pertaining
to the quantum of the plaintiff's claim. Bundle 3 is a further bundle
of the plaintiff which contains documents relevant
to the merits of
the matter. The fourth bundle is the first defendant's bundle of
documents. Regarding the status of the documents,
the parties agreed
that the relevant documents are what they purport to be without
necessarily agreeing on the correctness of the
contents thereof. The
parties further agreed that copies may be used and that it is
accepted that all correspondence were sent
on the date reflected on
the relevant document and received shortly thereafter, unless
specifically challenged.
The
plaintiff s evidence in chief:
[8]
The plaintiff testified that he is a retired mechanical engineer,
born on [...] 1943, and he resides in Westville, Durban,
KwaZulu-Natal. His late father passed away on 27 June 1999. The
plaintiff had 1 brother, who passed away after the passing of their
father. The plaintiff testified that he had a very good relationship
with his father. His relationship with his mother was not
at the same
level as what he had with his father and they had disputes from time
to time. At some stage the plaintiff decided to
have several photos
of his mother's ancestry copied and therefore took the photos home
with him. His car was however broken into
in Durban and all the
photos, which were obviously irreplaceable, were stolen. The
plaintiff's mother subsequently did not speak
to him for 16 years. He
however maintained contact with his father during this period.
[9]
After the plaintiff and his mother reconciled, they had regular
contact and he regularly visited his parents, sometimes accompanied
by his late brother.
[10]
The plaintiff's father was initially trained as a rigger on the
mines. He however subsequently moved to Durban where he became
a
businessman; he bought and a retail store and later on he bought a
second retail store. When the plaintiff's parents moved to
Harrismith
in 1966, his father sold the businesses in Durban and he bought and
managed three retail stores in Harrismith. The plaintiff
has no
knowledge as to how those businesses progressed at the time. His
father eventually sold the businesses. He was then employed
as
artistry by Nouwens Carpets factory in Harrismith and thereafter he
was employed as a handyman by Sir Harry Motel in Harrismith.
[11]
When asked about the alleged agreement between him and his parents,
the plaintiff testified that the initial agreement was
concluded in
the late 1960's and was reaffirmed periodically after that. This
initial agreement was concluded at the plaintiff's
parent's house in
Harrismith, which at the time was an apartment which had been
established behind one of his father's stores.
The parties to the
agreement were himself, his father and his mother; they were also the
only persons present. When asked by Mr
De Beer as to what was agreed
upon, the plaintiff testified that at the time his parents were
requesting loans from him for different
purposes. Although they
agreed that the funds would be repaid "possibly at the death of
the latest party on their side",
there was no clear and specific
agreement on this aspect. There was no discussion on the payment of
interest and according to the
plaintiff he never asked for the
payment of interest during this conversation.
[12]
The plaintiff's parents continuously asked for loans. The plaintiff
explained that although his father had three businesses
in Harrismith
at the time, he wanted to buy a fourth commercial site in Harrismith.
From time to time the plaintiff advanced money
directly to his
parents and also paid third parties on their behalf. He explained
that the plaintiff's bundles 1 and 2 comprise
the amounts paid to his
parents over a lengthy period of time, stretching from the time of
the initial agreement up to his mother's
death. The plaintiff further
explained that he tried to keep as many dockets pertaining to the
aforesaid payments as possible and
in those instances where some of
the dockets are missing, he can recall the approximate dates and
amounts of those payments.
[13]
When asked why he kept the dockets over such a lengthy period of
time, he explained that it became apparent that whenever his
parents
were in financial difficulties, they sought reaffirmation that he
would continue to support them by making the requested
payments. The
aforesaid requests to reaffirm the agreement emanated from the
plaintiff's parents and not from him and occurred
on various
occasions over a lengthy period of time. The situation continued even
after his father's death. On the day of his father's
funeral his
mother again requested him to reaffirm the agreement, which
conversation took place at his mother's house, being the
property
situated at [...] W. S., Harrismith. According to the plaintiff the
reaffirmation of the agreement was that he would continue
to provide
funds as and when required, which amounts would be repayable on his
mother's death.
[14]
After his father's death his relationship with his mother was very
good. He phoned her on a weekly basis and he visited her,
even after
he moved to Johannesburg to seek employment, every second to third
month, during which visits he also took groceries
along for her.
[15]
With regard to the first Will of the plaintiff 's mother, dated 13
November 2003 (plaintiff's bundle 3, p. 1-3), the plaintiff
testified
that his mother gave him her kist and that he saw that Will for the
first time on the day he made an inventory of the
contents of the
said kist. In terms thereof the plaintiff was the appointed executor
and the residual heir of 50°/o of the
estate. He explained that
Peter Haskins referred to in paragraph 6 of the Will is his mother's
grandson, son of his late brother.
Marion Heine is the granddaughter
of his mother, the sister of Peter. Elizabeth is the daughter of his
mother's brother, Harry,
and her goddaughter. Dale Viljoen is unknown
to the plaintiff .
[16]
On 26 June 2014, the plaintiff addressed a letter to Mr David Bekker,
his mother's attorney at the time (plaintiff's bundle
3, p. 4 - 5).
Mr De Beer requested the plaintiff to explain the reason for this
letter. The plaintiff testified that he was retired
at the time, he
could not find work because of his age and that he consequently no
longer had an income, all of which he explained
in the letter. He
therefore informed Mr Bekker that he will no longer be in a position
to pay his mother's expenses and that he
will request his mother's
service suppliers to forward their invoices to Mr Bekker's office for
payment. The plaintiff testified
that he did not receive any response
to this letter from Mr Bekker.
[17]
In terms of the second Will of the plaintiff's mother, dated 12
August 2014 (plaintiff's bundle 3, p.6), the plaintiff was
again
appointed as executor and he was the sole residual heir of the
estate. The plaintiff testified that the first time he saw
that Will
was the day after his mother passed away when personnel of Mr
Bekker's office sent him a copy of the Will on his request.
[18]
The plaintiff testified that his niece, Marion, from time to time
travelled with him to visit his mother. Marion became aware
of the
extent of financial assistance the plaintiff has been giving his
mother. Marion therefore expressed her concern towards
the plaintiff
that someone might exploit the situation and approach his mother in
the old age home and unduly influence her to
hand over her financial
and other affairs to that person. She therefore suggested to the
plaintiff that he should obtain a power
of attorney from his mother.
He subsequently telephonically discussed the principle of obtaining
such a power of attorney with
his mother and according to the
plaintiff, she was happy about such an arrangement. The plaintiff
then downloaded a power of attorney
document from the internet, to
which he made certain amendments (plaintiff's bundle 3, p.7 - p.14).
His understanding was that
it is a requirement for its validity that
a justice of peace countersigns a power of attorney. Therefore, on 14
August 2014, when
the plaintiff was on his way to take the power of
attorney to his mother, he stopped at the police station and
requested a constable
to accompany him to the old age home where his
mother was residing at the time, namely the E. L. H., Harrismith. His
mother and
two witnesses signed the power of attorney in his
presence, where after the constable countersigned the document.
As the
constable was leaving the room, he said to the plaintiff
"don't steal from your mother". According to the plaintiff
his
mother was very shocked about this remark in addition to her
already being upset about the constable's mere presence. The
plaintiff
responded to the constable by saying "I cannot steal
from my mother". The plaintiff testified that he never
acted
upon the power of attorney; it was only an assurance to look
after her affairs.
[19]
One of the witnesses who signed the power of attorney was Mr Gray.
The plaintiff explained that he was his mother's neighbour,
he
visited her daily and he took fresh produce to her on a weekly basis
from the farm where Mr Gray was working. On the day of
his mother's
passing, the plaintiff phoned Mr Gray to inform him of her death. He
said that he already knew, as the old age home
had already phoned
him.
[20]
Because Mr Bekker previously informed the plaintiff that he was the
appointed executor of the estate, he requested and received
a copy of
the Will from Mr Becker's office the following morning. However, that
day Mr Gray advised the plaintiff that there is
yet another Will.
That was the first time the plaintiff heard about the existence of
this (third} Will. Mr Gray provided him with
the first respondent's
details and the plaintiff requested a copy of the Will from the first
respondent, which she duly sent to
him via email.
[21]
This third and last Will of the plaintiff's mother is dated 8
September 2014 (plaintiff's bundle 3, p.15 - p.16). In terms
of this
Will the plaintiff was completely excluded from inheriting from the
estate and he was no longer the appointed executor.
The Will
stipulated three direct bequeaths and the E. L. H. was the sole
residual heir of the estate. The first defendant was appointed
as the
executor. The plaintiff explained that at the time he did not know
the first defendant, but his mother was a member of the
women's
institute of her church and his understanding was that the first
defendant at the time served as the acting minister of
that church
and she was also involved in the said women's institute.
[22]
According to the plaintiff he was confused after finding out about
the third Will and he therefore made an appointment with
his attorney
to seek advice. As a result of this consultation, the plaintiff's
attorney addressed a letter to the first respondent,
dated 6 March
2015 (plaintiff's bundle 3, p. 17). The crux of this letter reads as
follows:
"Mr
Haskins made certain advances to his late father and late mother over
the years, which by agreement were loans to be repaid
with interest
upon the death of the survivor of the parents. I attach details of
these loans together with a summary, showing a
total of R879 429,34.
This figure excludes interest to be calculated.
Kindly
acknowledge receipt of this claim against the estate."
[23]
Mr Bekker, acting on behalf of the first respondent in her capacity
as executrix, responded to the aforesaid letter in a letter
dated 12
May 2015 (plaintiff's bundle 3, p. 57). The relevant part of this
letter reads as follows:
"In
terms of Section 32(1) of the Estates Act, no 66 of 1965, the
executrix requests your client to provide the following:
1.
Proof of his claim supported by an affidavit accompanied by
supporting documents of each item claimed;
2.
Any written agreement/s between your client and the deceased in terms
of which prescription
of any of your client's claims has been stayed;
3.
Proof of any agreement between the deceased and any other person or
institution which makes
out the basis of your client's claim.
…
.
You
are requested to let writer of behalf of the executrix have the
aforementioned affidavit and supporting documents in terms of
section
32(1) by not later than 31 May 2015."
[24]
The plaintiff consequently had an affidavit prepared, as requested by
Mr Bekker (defendant's bundle, bundle 4, p. 24 - p. 27,
together with
annexures thereto, p. 28 and further). In paragraph 8 of the said
affidavit the plaintiff stated that the amount
owing to him is R876
371,28. He explained the discrepancy between this amount and the
amount currently being claimed by stating
that the initial
compilation of the claim, as set out and attached to the affidavit,
was done in a limited time of two weeks and
therefore specific
provision was made in paragraph 10 of the affidavit for further
documentation that may come to hand. Paragraph
10 reads as follows:
"I
record that where available, supporting documentation is attached to
the various annexures "D" through to "R".
Further
vouchers may come to light and I shall in due course supplement this
affidavit. Where no vouchers exist or cannot be found,
I confirm that
the amounts are to the best of my recollection correct."
Cross
examination of the plaintiff:
[25]
Mr Pienaar subjected the plaintiff to extensive, thorough and
gruelling cross examination, but, in my view, at all times in
a
courteous and reasonable manner.
[26]
I do not intend to narrate the totality of the plaintiff s evidence
during cross examination. I deem it expedient to rather
deal with and
concentrate on the evidence which is in my view crucial in the
determination of paragraph 1.1 of the Rule 33(4) order;
hence,
whether the plaintiff and his parents concluded the agreement as
pleaded in paragraphs 5 to 9 of the particulars of claim.
In the
process of such determination I will however obviously consider the
totality of the evidence.
[27]
The plaintiff was cross examined on the conclusion and the terms of
the alleged agreement in general, but also with reference
to specific
events during the relevant time period. In my view it is crucial to
deal with his evidence in this regard in quite
some detail:
1.
At the beginning of his cross examination, the plaintiff testified
that the sixteen year period during which his
mother did not speak to
him, ended in approximately 1992. Mr Pienaar then enquired from the
plaintiff whether he made monthly contributions
to his father during
the whole sixteen year period from 1976 to 1992. The plaintiff
responded that his father had financial constraints
and that he
therefore gave him money from time to time, but not necessarily
throughout the whole period.
2.
When asked what the initial agreement was, he testified that it was
agreed that he will advance loans to his
father, which will be
repaid. The manner of repayment was not discussed, nor was interest
discussed. A couple of questions later,
the plaintiff however
testified that initially his father only wanted to borrow R20 000.00
in order to buy a property adjacent
to one he already
had; no other loans were discussed at that stage. From the plaintiff
s summary of loans as contained in
the first defendant's bundle,
bundle 4, p. 32, it is evident that according to the plaintiff this
loan was advanced in October
1969. When asked about the aforesaid
discrepancy in his evidence, the plaintiff said that he made a
mistake.
3.
Considering the time period mentioned in paragraph 5 of the
particulars of claim, being 1968 to 1999, and the allegation
in
paragraph 7 of the particulars of claim where it is averred that his
parents were experiencing financial hardship during that
period, the
plaintiff was asked whether those averments are correct. He responded
that his parents did not experience financial
hardship in 1968
already; they only had cash flow problems at that stage. They only
started experiencing financial hardship at
a later stage, but which
was before the breakdown in the relationship between him and his
mother. However, later in his cross examination
the plaintiff
testified that he never investigated his parents' financial position
or their expenses, as he deemed it inappropriate.
He did not even
have knowledge of the amount of pension his mother was receiving. He
merely accepted what his parents told him
about their financial
position.
4.
The plaintiff was questioned on the contents of paragraph 8 of the
particulars of claim. Although I already quoted
paragraph 8 earlier
in this judgment, it is apposite to repeat it:
"8.
Express,
alternatively implied, further alternatively tacit terms of the
agreement were as follows:-
(a)
The plaintiff would assist his parents, Haskins and the deceased,
financially from time to time; and
(b)
The amounts expended by the plaintiff aforesaid would be repayable on
the death of the survivor of Haskins and the deceased
by:
(i)
The plaintiff lodging a claim for such expenses against the
estate of the survivor of Haskins and the deceased;
alternatively
(ii)
The plaintiff inheriting the estate of the survivor."
The
plaintiff denied the correctness of the aforesaid averments. He
repeated that the initial agreement only involved the
R20
000.00. He further vehemently denied that he ever expected to inherit
the estate; he accentuated that it was never discussed.
When asked
whether he agreed to the term pleaded in paragraph 8(b)(i), he
testified "no, not in 1968". He again stressed
that the
pleaded term in 8(b)(ii) regarding him inheriting the estate, was
never discussed. I have to remark that at that stage
of the cross
examination, the plaintiff became very agitated and responded in a
heated, almost aggressive, manner.
5.
Mr Pienaar then enquired from the plaintiff when they did then in
fact agree on the terms pleaded in paragraph 8
(excluding the
inheritance part), to which he responded that it was in 1992. His
father was ill and the plaintiff went to visit
him and also took him
some cash. That was also the day on which he and his mother
reconciled. The three of them sat around his
father's bed and his
parents said that both of them are aware that his father has been
receiving money from the plaintiff. They
indicated that they will
need further financial assistance in future and that the plaintiff
will be repaid at the death of the
survivor of his two parents.
6.
Mr Pienaar then referred the plaintiff to paragraph 3.1 of the first
defendant's request for further particulars,
which reads as follows:
3.1
Is it the plaintiff s case that the parties, being the plaintiff,
Haskins and the deceased, agreed to the terms of the
agreement as set
out in paragraph 8 of the particulars of claim during the conclusion
of the initial agreement during 1968? If
not, when was the agreement
concluded in respect of the terms as set out in paragraph 8 of the
particulars of claim?
Mr
Pienaar pointed out to the plaintiff that the aforesaid question was
answered in the affirmative in the plaintiff s response
to the
request for further particulars. He was then confronted about the
reason for the discrepancy between his evidence and the
pleadings in
this regard, but merely stated that he was unable to explain it.
7.
When Mr Pienaar repeated the averments to the plaintiff regarding the
conclusion of the agreement as pleaded in paragraph
5 of the
particulars of claim, he testified that the agreement was not
concluded in 1968. At that stage (1968) it was one loan
for purposes
of buying the property and thereafter there was a loan towards the
car expenses. The agreement pertaining to future
loans was however
only concluded at a later stage.
8.
Mr Pienaar referred the plaintiff to paragraph 4 of the affidavit
which he submitted in support of his claim, referred
to earlier. It
reads:
"Over
the years, it was agreed explicitly with my late father and my late
mother that the amounts loaned to and disbursed on
behalf of them
would be repayable upon the death of the survivor of them, the
understanding being that I
would u
l
timately
be repaid by inheriting the property situated at
[...] W.
S.
. Harrismith.
" (Own emphasis)
The
plaintiff again responded in an agitated manner and became
argumentative towards Mr Pienaar. He stated that the aforesaid
underlined
statement is not correct, that his attorney drafted the
affidavit and that he (the plaintiff) did not read it at the time.
The
plaintiff however confirmed that the aforesaid property is the
main asset in the estate. Mr Pienaar then put it to the plaintiff
that what he in fact agreed upon with his parents, was that he will
be repaid by inheriting the estate. The plaintiff fervently
denied
this contention.
9.
It is evident from the documentation that the plaintiff does not have
all the dockets, slips and other supporting
documents to substantiate
the payment of all the expenses he summarized. The inception dates of
the different types of alleged
payments are also not the same; in
fact, in some instances the respective inception dates are years
apart. It is against the aforesaid
factual framework that Mr keeping
Pienaar cross examined the plaintiff about his record keeping in view
of the alleged conclusion
and terms of the agreement. The plaintiff
testified about the compilation of the plaintiff's bundles 1 and 2
comprising the summaries
of alleged payments and the
documents/dockets/slips as prove of some of the alleged payments.
When asked whether he kept record
of all the payments right from the
start, the plaintiff said no. He stated that he only started keeping
record from a certain date.
When asked as from which date, he
responded that he is uncertain. The plaintiff explained that it was
unnecessary to keep record
from the start, as those payments were
only three specific loans, being the R20 000,00 for the property in
October 1969, the costs
of retrieving his mother's car from Mooi
River in June 1970 and the costs of repairs to the car in August
1970. Mr Pienaar asked
the plaintiff whether he started keeping
record of payments after the alleged conclusion of the agreement at
the bedside of his
sick father, which the plaintiff confirmed.
However, when asked whether he kept record of everything since that
day, he again said
no. The plaintiff again became agitated at that
stage of the cross examination and responded in a heated manner. He
stated that
he did not keep receipts for items he paid cash. He
further explained that the slips of the groceries he bought for his
mother,
he usually left in the bags for her to see. The invoice for a
fridge which he bought for his mother in Harrismith, he left inside
the fridge. The plaintiff conceded that he did not keep 100% record,
but excused his failure to do so by stating that he is an
engineer,
not a bookkeeper. Mr Pienaar put it to the plaintiff that if they had
in fact agreed that he will have to claim from
the estate as he
avers,
one would have expected that the he would have kept proper record to
enable himself to eventually be in a proper position
to prove such
claim. The fact that he did not keep proper record supports the
contention that it was agreed that the plaintiff
will inherit the
estate, or at least the property. The plaintiff again responded by
merely stating that he is not a bookkeeper.
10.
When asked whether Marion knew about the agreement, the plaintiff
confirmed same and said that they frequently discussed it.
Mr Pienaar
requested the plaintiff to narrate what he told Marion the agreement
entails. He testified that he told Marion that
his parents asked him
to support them, that he promised his father that he would do so and
he also told her that it is a condition
that he would be paid from
the estate. When she asked him how he was going to enforce that
payment, he said that he does not know
and that it will depend on how
solvent the estate is. He explained that he had no idea what his
mother was going to do regarding
her Will, as she constantly
threatened him with being excluded from her Will. He then would tell
his mother that it is fine, as
he has other resources, being to claim
from the estate. On a further question he testified that he told
Marion that they have an
agreement that he will support his parents
and that he will claim repayment from the estate, according to his
understanding. He
did not know how he was going to be paid; he did
not think it through. He then further testified:
"I
come back to the point that if I had been the beneficiary of the
estate, there would have been no need to put a claim against
the
estate. That
is also an explanation why I had not
kept records right from the
beginning,
there wou
ld
have been no need."
(Own
emphasis)
Mr
Pienaar then pointed out to the plaintiff that he is contradicting
himself, because earlier on he explicitly testified that no
mention
was made of him inheriting the estate during the conclusion of the
agreement next to the bedside of his father. In the
questions that
followed, the plaintiff again contradicted himself by, the one
moment, testifying that he never thought about him
being a
beneficiary of the estate, but then, the very next moment, testifying
that his understanding was that he would be a beneficiary
together
with his late brother.
11.
I quote the following part of the evidence from my notes:
"Pienaar:
You are fabricating the version that it was a loan agreement; you
would have been repaid by inheriting the property,
as stated in your
affidavit.
Plaintiff:
No.
Pienaar:
Only in cross examination you changed your version as to when
the agreement was concluded from 1968 to 1992.
Plaintiff:
Yes.
Pienaar:
Why?
Plaintiff:
I don't have an explanation.
Pienaar:
I put it to you that even on your 1992 version you cannot tell the
court when exactly that was.
Plaintiff:
No.
Pienaar:
So it could have been later, even 1997.
Plaintiff:
It could have been.
Pienaar:
You don't know when the agreement was concluded that forms your cause
of action.
Plaintiff:
No."
12.
I deem it essential to also quote the following part of the evidence
from my notes:
"Pienaar:
What did your mother tell you on the day of your father's funeral,
when you were together at the house when the agreement
was
reaffirmed.
Plaintiff:
She said to me you made a promise; you had an agreement with your
father. She asked if I remember the agreement and I
said yes. She
said you will look after me, I said yes. The details were not
discussed.
Pienaar:
Not at all?
Plaintiff:
Not at that stage, no.
Pienaar:
So she said that you promised your father that you will look after me
and you will do that?
Plaintiff:
Promised your father that you will look after me and you will be
repaid.
Pienaar:
Why, after every question, you add a little bit to your version?
Plaintiff:
Because I cannot remember what actually happened. I'm 73 years
old, my memory is not that good, please excuse me.
(The plaintiff was
very annoyed when he gave this answer.)
Pienaar:
I'm asking for the last time, what did she reaffirm?
Plaintiff:
To the best of my knowledge she said to me you promised your father
that you will look after me and that you will be
repaid.
Pienaar:
That s all? Plaintiff: That's it.
Pienaar:
Not the manner in which you will be repaid?
Plaintiff:
No, not at that stage, no.
Pienaar:
Were anybody else present? Plaintiff: My wife would have
been present.
Pienaar:
According to my notes, in your evidence in chief, you
testified
that the agreement that was reaffirmed on the day of the funeral is
that you will provide funds and it will be repaid
on the death of
your mother.
Plaintiff:
Not on the day of the funeral. I can't explain.
13.
The plaintiff s further evidence regarding the affirmation of the
agreement by his mother towards himself, was the following:
"Pienaar:
Apart from the day of your father's funeral, when was the agreement
confirmed towards you by your mother?
Plaintiff:
It was confirmed on a number of visits to her, when taking groceries
to her, we sat in the dining room and discussed
the agreement. This
happened periodically.
Pienaar:
What did she say?
Plaintiff:
She said thank you for the groceries. I left the slip most of the
occasions in the bags, other times I paid cash and
then did not keep
the slip. My mother said she has all these receipts and 'you will be
paid this when I die'."
[28]
At the conclusion of the cross examination of the plaintiff, the
plaintiff closed his case, whereupon the first defendant also
closed
her case.
Legal
principles relevant to the assessment of
t
he
evidence,
contentions
by
counsel
and evaluation
of
the
evidence
in
totality:
[29]
It is common cause between the parties that the plaintiff's claim is
based on an alleged agreement concluded with his parents,
with the
plaintiff consequently bearing the
onus to prove the
conclusion and the
terms of the agreement on a balance of probabilities.
[30]
Mr Pienaar submitted that in my assessment of the evidence, I should
apply the principles (or those which are applicable to
the
circumstances of this case) enunciated in
Stellenbosch
Farmers' Winery
Group
Limited and Another
v
Martell
et
Cie
2003 (1) SA 11
(SCA). I agree with this contention.
The principles set
out in para [5] of the judgment are the
following:
"...
The technique generally employed by courts in resolving factual
disputes of this nature may conveniently be summarised
as follows. To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual
witnesses; (b)
their reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular
witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors,
not necessarily in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the
probability or improbability of
particular aspects of his version,
(vi) the calibre and cogency of his performance compared
to that of other witnesses
testifying about the same incident or
events. As to (b), a witness' reliability will depend, apart from the
factors mentioned under
(a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question
and (ii) the quality,
integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and evaluation of
the probability or
improbability of each party's version on each of
the disputed issues. In the light of its assessment of (a), (b) and
(c) the court
will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it. The
hard
case, which will doubtless be the rare one, occurs when a
court's credibility findings compel it in one direction and its
evaluation
of the general probabilities in another. The more
convincing the former, the less convincing will be the latter. But
when all factors
are equipoised probabilities prevail."
[31]
Both counsel also correctly pointed out that because the evidence
deals with a claim against a deceased estate, a cautionary
rule
applies to the manner in which the evidence should be approached. In
this regard the following was stated in
Borcherds v
Estate
Naidoo
1955 (3) SA 78
(A) at para [79]:
"The
Court must therefore scrutinise with caution the evidence given by,
and led on behalf of, the surviving party. This attitude
has been
adopted by the Courts in a number of cases in which a claim was
preferred against a deceased estate, or a defence was
set up to a
claim by the estate. I may refer, inter alia, to Estate Lynch v
Stewart1
1913 C.P.D. 451
at p. 454; Estate Schickerling v
Schickerling,
1936 CPD 269
at p. 272; Estate van der Walt v Crooks,
1941 CPD 244
at pp. 247 - 249 and decisions reviewed there; to the
remarks of DAVIS, A.J.A., on the last-mentioned case in Moyce v
Estate Taylor,
1948 (3) SA 822
at p. 827; and to Wood v Estate
Thompson and Another,
1949 (1) SA 607
(N), where SELKE, J.,
enunciated the principle, as deduced by him from the cases to which
counsel had referred him, in the following
words : -
'I
am not aware of any rule of our law or of any practice of our Courts
which requires that, merely because a claim is one made
against a
deceased's estate, it must on that account be proved with a special
degree of cogency, and I do not believe that any
such rule exists. If
it did, it would no doubt work for the protection of the estates of
deceased persons against fraudulent claims,
but, on the other hand,
it might work considerable injustice on honest claimants against such
estates. It seems to me that such
a principle, if it existed, would
obviously cut both ways, and, on the whole, I do not think the cases
are really authority for
more than the principle that the Court must
examine with a very cautious eye uncorroborated evidence given in
such cases; but I
do not appreciate that the Court should do more in
that respect than it is warned to do in all cases where interested
evidence
is given ex parte against someone who is not in a position
to answer it’
I
have no fault to find with the statement of the principle by SELKE,
J., except that I should prefer to omit the word 'uncorroborated'
,
unless it means 'uncorroborated by evidence which is itself cogent
enough to overcome the caution'. The mere fact that, as in
the case
before us, three witnesses corroborate each other by giving similar
evidence on the one side cannot make the three or
any one of them
escape the cautious scrutiny which should be applied to evidence
which the other party to the suit is not in a
position to answer."
The
rationale for the aforesaid cautionary rule is obvious, being that
there is nobody to gainsay the evidence presented.
[32]
Mr De Beer submitted that in assessing the plaintiff's evidence, I
should take the following into consideration:
1.
The plaintiff's advanced years (73) are a factor which should be
taken into account in the
general assessment of him as a witness and
of his evidence.
2.
The matter deals with a family dispute which is distressing to the
plaintiff. Although he
became argumentative during parts of the cross
examination, I should show understanding for this considering the
circumstances
under which he testified.
3.
The plaintiffs evidence covered events which stretched over a lengthy
period of time, ±
45 years; a witness cannot be expected to
remember everything in these circumstances.
Mr
De Beer therefore submitted that although there clearly were
discrepancies and errors in the plaintiff's evidence, it is
understandable
having regard to the lengthy time period.
[33]
Mr De Beer consequently submitted that the inadequacies in the
plaintiff s evidence are not fatal to the plaintiff s case.
He
contended that I should consider the evidence as a whole, weighed
against the general probabilities of the case. It was his
submission
that when doing so, mindful that the plaintiff is a single witness
and that there is nobody to gainsay his evidence,
corroboration is
found which gives a ring of truth to his version. In this regard Mr
De Beer relied on the following two factors:
1.
The contents of the letter of 26 June 2014, addressed by the
plaintiff to Mr Bekker, his
mother's attorney at the time. Mr De Beer
referred to,
inter
alia,
the following extracts
from the letter:
"For
the past 25 years I have been assisting my parents financially, for
10 years before my father died and for 15 years since.
For the past
ten years I have paid all my mother's expenses including....as well
as paying cash into her bank account monthly.
Monthly expenses
vary from R8000 to R10 000. However I am now
over 70 years old and have not been
able to find work for the past 2
years and am now in financial difficulties myself with the result
that I will not be in a position
to meet these costs, or the R3500
required by Eliza Little, this month or in future. I will request her
service suppliers to forward
their invoices to your offices for
payment.
I
promised my father that I would look after her when he died and am
very heart sore that 1 am no longer in a position to do this.
I have
crippled myself financially to try to fulfil the promise that I made
but have simply run out of funds. My only income is
a retirement
annuity of R8 100 per month which has been used wholly to meet her
expenses since she lost her government pension.
Please
understand the difficult position that I have been placed in and use
whatever equity can be found in the property and contents
to fund her
future needs."
Mr
De Beer submitted that despite the fact that this letter was
extensively canvassed in cross examination, the aforesaid is and
remains consistent with the plaintiff s version throughout. Nothing
in the letter gainsays the plaintiff s version. With regard
to the
fact that repayment of the advanced amounts was not raised or
addressed in the letter, Mr De Beer contended that the evidence
should be considered in the context of the date of the letter. At
that stage the plaintiff s mother was still alive and her death
was
not anticipated at the time. Only the first Will had been executed by
the plaintiff s mother at the time. The plaintiff however,
according
to Mr De Beer's argument, had no knowledge of the contents of the
first Will, let alone the fact that two other Wills
were still to be
executed in the future. Mr De Beer therefore contended that it
was not necessary for the plaintiff to raise
the issue of repayment
at that stage, as it would have been premature as his mother was
still alive.
2.
Secondly, the dockets/documents contained in the plaintiff s bundles
1 and 2. Mr De Beer
submitted that, on probabilities, the plaintiff
kept the said documents, which cover a very lengthy period of time,
to enable him
to eventually prove the payments he made. It
corroborates the crux of his version, despite the existence of other
discrepancies.
I raised the question to Mr De Beer as to what should
be made of the fact that the plaintiff did not keep record/prove of
payments
as from a specific date. Mr De Beer submitted that the
plaintiff gave the explanation that he is not a good bookkeeper,
which Mr
De Beer submitted is a plausible answer. He contended that
it does not distract from the fact that the bundles contain a vast
volume
of documentation, extending over a long period of time, which
is entirely consistent with the plaintiff's version and corroborates
his version. Mr De Beer submitted that it is a strong factor which
demonstrates that the plaintiff's evidence is creditworthy.
[34]
During Mr De Beer's argument, I broached the issue of the differences
between the pleadings and the plaintiff's evidence. He
submitted that
the pleadings were widely pleaded; it is a truncated version which
gives an overall synopsis of the actual agreement.
He submitted that
a restrictive interpretation should not be applied; the pleadings are
not to be understood to mean that the agreement
in its final form and
terms was concluded in 1968 already - it stretched over a period of
time from 1968 to 1999. The terms pleaded
in paragraph 8 of the
particulars of claim constitute the terms of the final
agreement which was eventually concluded.
With
regards to paragraph 8(b)(ii) of the particulars of claim, Mr De Beer
submitted that it was pleaded in the alternative and
that the
plaintiff relies on the first alternative, which is corroborated by
the extensive documentation before court. The purpose
of the pleading
over is to identify the source of funds from which from which the
loan will be repayable on the death of the survivor,
namely the
estate. The pleadings are wide enough to cover this. Mr de beer
submitted that there is no discrepancy or inconsistency
between the
term as pleaded and the plaintiff's evidence in court. The mere fact
that the plaintiff entertained the hope or expectation
to inherit is
neither here or there. It does not affect the agreement upon which
the plaintiff relies. Mr De Beer contended that
the two concepts,
namely hoping to inherit on the one hand, and proving a claim as a
creditor on the other hand, are not mutually
exclusive.
[35]
Mr De Beer consequently submitted that on all material aspects and
having regard to the corroboration, the plaintiff has established
the
agreement he contends for and it has been borne out by the general
probabilities of the case. He therefore submitted that paragraph
1.1
of the Rule 33(4) order should be decided in favour of the plaintiff.
[36]
At the onset of his argument, Mr Pienaar highlighted the fact that
paragraph 1.1 of the Rule 33(4) order specifically determines
the
first issue to be whether the agreement
"as pleaded in
paragraphs 5 to 9 of the
particulars of claim" had been concluded. Mr Pienaar submitted
that the plaintiff came to court on
the basis of a particular
agreement with precise terms as pleaded in the pleadings. However, in
his evidence he gave different
versions regarding the conclusion of
the agreement as such and with regards to the terms thereof, which
versions also differed
from the pleadings. Mr Pienaar contended that
it is not the court's duty to go through the different versions
pertaining to the
conclusion and the terms of the agreement to then
decide which version actually constitutes the agreement.
With
regards to the alternative pleaded in paragraph 8(b)(i) and
(ii)
of the particulars of claim, Mr Pienaar submitted that it clearly
refers to one of two ways of repayment that was agreed upon
and not
to two different, alternative terms of the agreement. The plaintiff
cannot simply now choose which term he wishes to rely
on.
[37]
In
Beck's
Theory
and
Principles
of
P
l
ead
i
ngs
in Civil
Actions
, H.
Daniels, 6
th
Edition, at p. 43 - p. 46, the principles of
pleading and ant the function of pleadings are dealt with, which,
inter alia,
include the following:
"3.1.1
The
function
of
pleadings
The
function of pleadings may be said to be threefold.
(a)
(b)
They must ensure that both parties know what are the points of issue
between them, so that each party knows what case he has
to meet. He
or she can thus prepare for trial knowing what evidence he or she
requires to support his own case and to meet that
of his opponent.
The object of pleading is to clarify the issues between the parties
and a pleader cannot be allowed to direct
the attention of the other
party to one issue, and then at the trial, attempt to canvass
another.
…
.
3.1.3
General principles of pleading
The
rules of court embody the elementary principles of pleading but they
do not set out in detail all the principles on which pleadings
in a
law suit are to be drawn. The general principles of pleading were
explained by Wessels J -
"The
plaintiff must not set out the evidence upon which he relies, but he
must state clearly and concisely on what facts he
bases his claim and
he must do so with such exactness that the defendant will know the
nature of the facts which are to be proved
against him so that he may
adequately meet him in court and tender evidence to disprove the
plaintiff s allegations."
…
.
Every
pleading must contain a clear and concise statement of the material
facts upon which the pleader relies for his or her claim,
defence or
answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
Thus
the plaintiff s claim must be such as to enable the defendant to know
what case he or she has to meet.
…
.
Once
pleadings are filed the parties are bound by them. If the pleadings
raise certain issues and the evidence adduced at the trial
does not
substantiate them, the action (or defence as the case might be) would
fail unless amendments are granted."
[38]
In my view the particulars of claim indeed contains a "clear and
concise statement of the material facts upon which the
pleader relies
for his...claim". In this regard I have
to agree with Mr Pienaar's
contention that
the plaintiff came to court on the basis of a particular agreement
with precise terms as pleaded. Although paragraph
5 of the
particulars of claim mentions 'the period 1968 to 1999", this
possible ambiguity was explicitly raised by the first
defendant in
paragraph 3.1 of the first defendant's request for further
particulars, which reads as follows:
3.1
Is it the plaintiffs case that the parties, being the plaintiff,
Haskins and the deceased, agreed to the terms of the agreement
as set
out in paragraph 8 of the particulars of claim during the conclusion
of the initial agreement during 1968? If not, when
was the agreement
concluded in respect of the terms as set out in paragraph 8 of the
particulars of claim?
The
plaintiff, in response to the aforesaid, clarified this uncertainty
by stating "yes" in paragraph 3.1 of his further
particulars. With regards to the interpretation of the alternative
pleaded in paragraphs 8(b)(i) and (ii) of the particulars of
claim, I
cannot agree with Mr De Beer's contentions. If it is to be
interpreted as two different , alternative terms of the agreement,
it
would have the result that the pleading is to be read to state that
it is the plaintiff's case that they concluded the agreement
either
on terms
(a)
and (b)(i) or on terms (a) and (b)(ii), which would have the result
that the parties had in fact not concluded a valid agreement
as they
did not have
consensus
on the material terms of the agreement.
I therefore agree with Mr Pienaar's submission that it is to be
interpreted as two alternative
manners of repayment which were agreed
upon.
[39]
I am consequently of the view that I am compelled to approach this
matter on the basis that, on the pleadings, the plaintiff
relies on
an agreement which was concluded in 1968 on the terms as pleaded in
paragraph 8 of the particulars of claim.
[40]
When I now turn to consider the plaintiff's evidence in chief
regarding the agreement, the following is evident:
1.
He testified that the initial agreement was concluded in the late
1960's, at his parent's
house, which agreement was reaffirmed
periodically after that. Although mention was made that that the
funds would possibly be
repaid at the death of the survivor of his
two parents, he specifically testified that there was no agreement as
to when and how
the funds would be repaid. They did not discuss the
payment of interest at all.
2.
The plaintiff also testified that on the day of his father's funeral,
his mother requested
him to reaffirm the agreement. This conversation
took place at the property described in the particulars of claim. He
testified
that the affirmation of the agreement was that he would
continue to provide funds as and when required, which would be
repayable
on his mother's death.
[41]
During cross examination, the following was his evidence regarding
the agreement:
1.
When asked about the initial agreement, he
testified that it
was agreed that he will advance loans to his
father from time to time, which will be repaid, but the manner in
which it was to
be repaid, was not discussed. Interest was also not
discussed. Shortly after that, the plaintiff however testified that
it was
only the loan of R20 000.00 that was discussed, no future
loans were discussed at that stage. He was unable to explain this
discrepancy
in his evidence.
2.
With reference to paragraph 8(b)(ii) of the particulars of claim, he
vehemently denied that
it was ever discussed that he would inherit
the estate and he never expected for that to happen. According to him
he did not even
think about such a possibility. However, the
plaintiff thereafter contradicted himself by not only testifying that
his understanding
was that he would be a beneficiary together with
his late brother, but also testified that if he had been a
beneficiary of the
estate the current claim would not have been
necessary, which is also an explanation for why he had not kept
records of payments
from the beginning.
3.
The plaintiff subsequently testified that the agreement on the terms
pleaded in paragraph
8 of the particulars of claim (excluding the
inheritance part), was only concluded in 1992 when his father was
ill, on which day
he and his mother also reconciled. In his evidence
in chief he testified that they agreed that the funds will be
repayable on his
mother's death. However, in cross examination he
specifically testified that the manner in which the funds were to be
repaid, was
not discussed or agreed upon on that occasion.
3.
The plaintiff thereupon conceded that he changed his version as to
when the agreement was
concluded from 1968 as testified in his
evidence in chief to 1992 in cross examination. He was unable to
explain the inconsistency
between this version and the date of 1968
which was provided in the plaintiff s further particulars. He further
conceded that it
might even have been later than 1992, even as late
as 1997, and that he actually does not know when the agreement which
constitutes
his cause of action, was concluded.
4.
He however testified that the agreement was confirmed to him by his
mother during a number
of visits to her, when he took her groceries.
They would then sit in the dining room and discuss the agreement.
When asked what
his mother said, he explained that she said thank you
for the groceries. On most of the occasions he left the slip in the
grocery
bags, other times he paid cash and he then did not keep the
slip. According to the plaintiff his mother said she has all those
receipts and that he will be paid when she dies.
[42]
From a proper reading of the plaintiff's evidence regarding the
agreement, I am consequently compelled to find the following:
1.
The
viva voce
evidence adduced by the plaintiff is not in
accordance with, nor does it substantiate, the averments in the
particulars of
claim, read with the further
particulars, regarding the conclusion and the terms of the
agreement which forms
the plaintiff s cause of action. In addition
his
viva
voce
evidence as such contained
different versions of the alleged conclusion and terms of the
agreement.
2.
Even if I completely ignore the pleadings with regard to the
averments pertaining to when
and where the agreement was concluded
and also pertaining to the second alternative manner of repayment,
the plaintiff still failed
to prove the conclusion of an agreement in
terms of which the term pleaded in paragraph 8(b)(i) was agreed upon.
The plaintiff
did not present any evidence regarding an agreement on
this term; to the contrary. His evidence pertaining to the
discussions in
1968, 1992 and on the day of his father's funeral, was
that the manner of repayment was not discussed nor agreed upon. Even
if
his own version is to be accepted, it is evident that he in fact
did not know how he was going to be repaid and that he formed his
own
understanding that he will possibly have to claim it from the estate.
[43]
In my view the last-mentioned conclusions already substantiates and
necessitates a finding that the plaintiff did not discharge
the onus
of proving paragraph 1.1 of the Rule 33(4) order, moreover so in view
of the applicable cautionary rule.
[44]
If I am to ignore my aforesaid finding, and continue to assess the
evidence of the plaintiff by considering the aspect of corroboration
for the plaintiff s version, the following transpires:
1.
The plaintiff's attorney wrote a letter of demand, dated 6 March
2015, to the first defendant’s
attorney, Mr Bekker (first
defendant's bundle, bundle 4, p. 427). The basis of the demand set
out in the letter is the following:
"Mr
Haskins made certain advances to his late father and late mother over
the years, which by agreement were loans to be repaid
with interest
upon the death of the survivor of the parents. I attach details of
these loans together with a summary, showing a
total of R 879 439.34.
This figure excludes interest to be calculated."
I
have already found that the plaintiff did not present any evidence
that the term pleaded in paragraph 8(b)(i) of the particulars
of
claim, was agreed upon. It is noteworthy that, but for the payment of
interest, the averments in the aforesaid letter corresponds
with the
evidence of the plaintiff, importantly also lacking an averment that
it was agreed between the parties as to how the loans
were to be
repaid. However, the flipside of the coin is that the contents of the
letter of demand do not correspond with the pleadings,
more
particularly with reference to paragraph 8(b)(i) thereof .
2.
As mentioned earlier, the plaintiff signed an affidavit which was
submitted in support of
his claim against the estate. In paragraph 4
thereof the following is stated:
"Over
the years, it was agreed explicitly with my late father and my late
mother that the amounts loaned to and disbursed on
behalf of both of
them would be repayable upon the death of the survivor of them, the
understanding being that I would ultimately
be repaid by inheriting
the property situated at [...] W. S., Harrismith. I would point out
that as I was dealing with my parents,
the agreement to repay me the
amounts set out was never reduced to writing"
The
plaintiff testified that the aforesaid part about inheriting the
estate is wrong. His explanation was that his attorney drafted
the
affidavit and that he, the plaintiff, did not read it at the time.
His response was that his attorney should be questioned
about it. The
fact of the matter is that, on probabilities, the plaintiff must have
given his attorney these instructions regarding
the terms of the
agreement, which version does not corroborate the plaintiff s current
version of the terms of the agreement, but
rather supports the
contention on behalf of the first defendant.
3.
The averment in paragraph 8(b){ii) of the particulars of claim does
not only
mutatis
mutandis
directly
contradicts the plaintiff s version, but is also in accordance with
the allegation in the aforementioned affidavit.
4.
With regard to the letter of 26 June 2014, the plaintiff, in his
evidence in chief, created
the impression that he wrote the letter
merely to explain that he was in financial dire straits and that he
was therefore no longer
in a position to pay his mother's expenses.
He was heart sore about the situation and did not raise the issue of
repayment, as
that was not the purpose of the letter. However, in
cross examination and after he attempted to give two or three other
reasons,
it eventually became clear that he actually wrote the
letter in response to his mother not wanting to talk to him during
his visit
on 24 June 2014. He conceded that he was cross and upset
with her and that this was a factor in his decision to write the
letter.
He however maintained that he wrote the letter not only
because he was cross, but also because of his financial position.
I
still find it strange that the plaintiff did not mention the issue of
repayment by the estate, moreover so because he was cross
at the time
when he wrote the letter. On probabilities one would have expected
that if such a term had in fact been agreed upon,
this would have
been the perfect opportunity to bring it to the attention of his
mother's attorney. He went to all the trouble
to explain the first
part of the agreement, namely that he undertook and promised to
maintain his parents, but then he fails to
mention that the said
payments constituted loans which were to be repaid by the estate at
the death of his mother. As already mentioned
earlier, Mr De Beer
accentuated the fact that at the time the plaintiff did not have
knowledge of the contents of his mother's
Will. Unfortunately that
argument cuts both ways, because it can also serve to support Mr
Pienaar·s contention that, on
probabilities, the plaintiff and
his parents agreed that he would be repaid by inheriting the estate
and thus repayment by the
estate was not mentioned as the plaintiff,
at that time, still harboured under the impression that he was to
inherit the estate
as agreed between the parties. I therefore cannot
agree that this letter corroborates the plaintiff's version, as the
letter is silent on
this alleged crucial term
of the agreement.
5.
With regards to the dockets/documents contained in the plaintiffs
bundles 1 and 2, I have
already referred to Mr De Beer's submission
that the fact that the plaintiff kept the said documents which
stretch over a lengthy
period of time, corroborates the crux of his
version. I cannot agree with Mr De Beer's submission. I have already
dealt with the
plaintiff's evidence regarding the bookkeeping issue
and the fact that he did not start keeping record of his payments as
from
a specific date, nor did he keep prove of each and every such
payment. Had the agreement been that the payments were to be repaid
by the estate by means of the plaintiff lodging a claim against the
estate, one would firstly have expected that the record of
such
payments would have started from, at least approximately, from a
specific date. Secondly, one would have expected that the
plaintiff
would have kept a far more complete record of the payments and prove
thereof, than what is contained in the plaintiff
s bundles 1 and 2.
In my view the contents of the said bundles, read together with the
plaintiffs evidence and explanations regarding
his record keeping, do
not corroborate the plaintiff s version of the conclusion and terms
of the agreement, to the contrary. In
my view it is actually
indicative of a desperate attempt to reconstruct a history of
payments in circumstances where no conscious
or active record keeping
existed during the relevant period of time.
[45]
I can consequently find no corroboration for the plaintiff s version
in the aforesaid pleadings and documents.
[46]
With reference to the plaintiff s evidence that he discussed the
agreement with Marion on numerous occasions, Mr Pienaar submitted
that she was available as a witness and could have been called by the
plaintiff to corroborate his version regarding the conclusion
and
terms of the agreement. His failure to have done so in the
circumstances of this case, therefore, warrants an adverse inference.
Mr Pienaar relied on the judgments in
Munster
Estates (pty) LTD
v Killarney
Hil
l
s
(pty)
L
TD
1979 (1) SA 621
(AD) and
Leeuw
v
First
National
Bank
L
TD
2010 (3) SA 410
(SCA) for this contention. Mr De Beer submitted that
Marion's testimony in this regard would have been about a previous
consistent
statement of the plaintiff, which would have been
inadmissible evidence.
[47]
The general rule is indeed that previous consistent statements and
evidence about such statements are inadmissible. There
are however
circumstances in which such evidence is admissible, one of which is
to rebut a claim of previous fabrication. In
The Law of
Evidence
, CWH Schmidt & H Rademeyer, Issue 14, at p.
14-5, the following principles are stated:
"14
2
Rebutting a claim of recent fabrication
In
R
v
Dart (2)
1951 1 SA 483
(W) it was put to a
state witness during cross-examination that his evidence was false
and that, because he wanted to curry favour
with the police, he and
the police sergeant had prepared the evidence in advance. In order to
rebut this allegation the state adduced
as evidence his original
affidavit in which he had told the same story. It was found to be
admissible despite the general rule
that a previous consistent
statement is inadmissible.
As
indicated, evidence showing the witness to have said previously what
he now says in court, generally contributes too little to
be
considered relevant; but as soon as the opposing party alleges that
the witness's story is a fabrication, his credibility is
placed in
issue, and evidence of his consistency is clearly relevant to this
issue.
Although
merely disputing what a witness said is insufficient to render his
previous statement admissible, an
express
allegation that the evidence is a recent
fabrication is also unnecessary. lt need not be expressed
in so many
words. As Rumpff CJ put it in
S
v
Bergh
1976
4 SA 857
(A) 8680:
'Die
begrip "onlangse versinsel" is nie 'n omlynde begrip nie en
dit is die plig van 'n hof, by 'n probleem van hierdie
aard, om vas
te stel of die aanval op die getuie se getuienis wesenlik neerkom op
'n suggestie, uitdruklik of implisiet, dat vir
doeleindes van die
saak hy iets as 'n feit beweer wat tydens die afle van sy getuienis
'n versinsel is of in sy verbeelding bestaan.'
That
the evidential weight of a previous statement plays a part was also
confirmed in
S v Bergh.
The fact that the previous statement
was made before a dispute arose, at a time when the declarant as yet
had no motive to make
a false allegation, in that case contributed to
its admissibility.
Although
it is customary to speak of a
recent fabrication,
the
requirement is not so much that the alleged fabrication must have
been recent. 'It appears that the comparative "recentness"
of the fabrication has not been the deciding issue but rather the
question whether, between the event under investigation and the
trial
of the matter, the witness invented a false version of what
occurred.'
The
evidence
is adduced only to
rebut the
allegation
of fabrication
and
be
used for
no other
purpose. It
i
s
not corroboration
of
the
consistent statement in
court
.
"
(Own emphasis)
[48]
Mr Pienaar did not directly put it to the plaintiff that his version
of the agreement is a recent fabrication. However, Mr
Pienaar's line
of questioning and attack on the plaintiff s version was the
following:
1.
The plaintiff s version of the agreement is not true; what had in
fact been agreed upon is
that the plaintiff will financially assist
his parents, in return for which he will inherit the estate at the
death of the survivor
of his two parents.
2.
The aforesaid is confirmed by the conduct of the plaintiff when he
became aware that he had
been excluded from the Will, in that he
decided to dispute the validity of the Will. That begs the question
why the plaintiff,
if the agreement was in place at the ·time
on the terms as alleged by the plaintiff, did not simply enforce his
alleged
claim for repayment against the estate.
3.
Only once it became evident that there is no basis upon which the
validity of the Will can
be successfully disputed, the letter of
demand based on the alleged agreement (although still without
alleging an agreement as
to how it was to be repaid), dated 6 March
2015, was addressed to Mr Bekker. No earlier or previous mention was
made of the alleged
agreement and the plaintiff's entitlement to
repayment from the estate, not even in earlier letter of the
plaintiff letter to Mr
Bekker, dated 26 June 2014. In the plaintiff's
affidavit which was drafted subsequent to the letter of demand,
dated
2 June 2015, the agreement with
his parents was mentioned, but then with an allegation that regarding
the repayment upon the death of the survivor of his parents "the
understanding being that I would ultimately be repaid by
inheriting
the property situated at [...] W. S., Harrismith".
[49]
In my view Mr Pienaar's aforesaid line of questioning clearly
suggested that the plaintiff s version of the conclusion and
terms of
the agreement is a recent fabrication, in the sense that the current
version of the plaintiff only arose when the plaintiff
was
disinherited and it became apparent that the validity of the Will
cannot successfully be disputed.
[50]
On the plaintiff s version it is to be accepted that Marion's
evidence would have shown that what the plaintiff previously
told her
regarding the conclusion and the terms of the agreement with his
parents, is the same as his current version thereof in
court.
Although her evidence could not have served as corroboration of the
plaintiff's version in court, it could have rebutted
the suggestion
that the plaintiff s version is a recent fabrication. Such evidence
of consistency would have been relevant to the
credibility of the
plaintiff.
[51]
In the circumstances and bearing in mind that Marion would have been
available as a witness, the plaintiff s failure to have
called her as
a witness indeed warrants an adverse inference. I should however
immediately mention that this aspect is only another
factor which I
take into consideration in my determination of this matter, but it is
definitely not the decisive factor.
[52]
A further factor to consider with regard to the plaintiff s
credibility is his candour and demeanour in the witness-box. I
have
already recorded that at times the plaintiff showed agitation and
annoyance in the witness box and responded accordingly to
certain
questions posed to him. He was also argumentative in some of his
responses. He unnecessarily raised his voice on occasions.
As
mentioned earlier, Mr De Beer contended that that as this matter
deals with a family dispute, it is distressing for the plaintiff
and
that his demeanour in court is therefore understandable considering
the circumstances in which he testified. I cannot agree
with Mr De
Beer's submission. As submitted by Mr Pienaar, with which submission
I agree, the plaintiff presented and displayed
the aforesaid negative
behaviour in instances when he clearly found it difficult to explain
certain inconsistencies and contradictions
in his evidence as such or
as between his evidence and the contents of the pleadings and
documentary evidence. He at the same time
changed his evidence
whenever he was not in a position to explain such inconsistencies and
contradictions. The plaintiff's aforesaid
conduct constituted a
negative reflection on his credibility as a witness.
[53]
In my view the plaintiff was also not a reliable witness. I have
already dealt with numerous contradictions and inconsistencies
in his
evidence. There were also a number of incidental issues pertaining to
which he presented evidence on the basis that he is
very certain
about the particular fact or event, but which evidence eventually
during further examination turned out to have been
factually
incorrect. I do not consider it necessary to deal with the detail of
these instances.
[54]
The mere fact that the plaintiff s evidence was not contradicted,
does not render it true or acceptable in the circumstances
of this
case. See
McDonald v Young
2012 (3) SA 1
(SCA)
Conclusion:
[55]
In the circumstances, I cannot find that the plaintiff discharged the
onus of proving the conclusion of the agreement as pleaded
in
paragraphs 5 to 9 of the particulars of claim.
[56]
Paragraph 1.1 of the Rule 33(4) order can therefore not be decided in
favour of the plaintiff, with the result that the plaintiff's
claim
stands to be dismissed. It is consequently also unnecessary for me to
deal with paragraph 1.2 of the said order.
[57]
There is no reason why costs are not to follow the success in this
matter.
[58]
The following order is made:
The
plaintiff s claim is dismissed, with costs.
___________________
C.
VAN ZYL, J
On
behalf of the plaintiff: Adv. H. A. de Beer SC
Instructed by
Matsepas Inc.
BLOEMFONTEIN
On
behalf of the first
defendant:
Adv. T. Pienaar
Instructed by
Phatshoane Henney Inc
BLOEMFONTEIN