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[2016] ZAGPPHC 473
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Penwill NO and Another v Penwill and Others (61782/2012) [2016] ZAGPPHC 473 (20 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 61782/2012
DATE:
20/6/2016
Reportable:
No
Of
interest to other judges: Yes
Revised.
In
the matter between
RICHARD
DOUGLAS PENWILL
NO FIRST
PLAINTIFF
CHRISTOPHER
ANTHONY FRASER MACDONALD NO
SECOND
PLAINTIFF
and
ANDREW
DONALD JONATHAN PENWILL
FIRST
DEFENDANT
WILLEM
FRANCOIS BOUWER
NO
SECOND
DEFENDANT
MASTER
OF THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
THIRD
DEFENDANT
JUDGMENT
VAN
OOSTEN J:
Introduction
[1]
‘Prophetically, I see this ugly difference of opinion, and the
waste of assets, continuing after I have departed this
earth. This
continuing disagreement without reason is a struggle without victors,
only victims.’
Peter
D’Arcy Herrman, Chartered Accountant (SA), Tzaneen, 26 January
2007.
And,
indeed so it has come to pass: almost 10 years hence - Peter
D’Arcy-Herrman in the afterlife and the Penwill brothers
head
locked in a titanic legal battle.
[2]
The core issue in this matter concerns the validity of a will
executed by the late Ms Pat Penwill. On 30 August 2006, at the
age of
83, widowed and while living in the family homestead on the farm Grey
Mists, in the district of Haenertsburg, in the province
of Limpopo,
she executed the contested will (the August 2006 will). The parties
to these proceedings, in essence, are Richard Penwill
and his elder
brother, Andrew Penwill, who are the only sons of the testatrix and
her late husband, Douglas Penwill. For the sake
of convenience I will
henceforth refer to the members of the Penwill family by their first
names. Richard is the first plaintiff
in this action, acting in his
capacity as one of the trustees of the Beverly Trust (the trust), a
family trust established by his
late father, in 1997. Andrew is the
first defendant and the second defendant is the executor of the
deceased estate appointed by
the third defendant. I shall henceforth
interchangeably refer to the plaintiffs in the singular as ‘the
plaintiff’
and to the first defendant as ‘the
defendant’.
[3]
The dispute between the Penwill brothers is embedded in rivalry,
jealousy, greed and hatred. Richard, although admitting their
present
strained relationship, pins the commencement of their animosity to
approximately 2003 and maintains that, before that,
they were on
‘kissing terms’. This kind of rivalry is not uncommon to
human nature in the context of heritable expectations
and disputes,
as so appositely described in an Afrikaans song:
‘
Belangrik,
verseker.
Kyk hoe baie mense by die
graf
kameras flits aanhoudend
selfs die predikant moet
wag
Halleluja, sing almal
saam
Prys die Here se naam
En daarna
gaan almal huistoe
en die manne skink ‘n
dop
die maan sal
sy gang gaan
die son kom weer in die
more op
Hoe later, hoe kwater
die testament, die groot
baklei
broedertwis, dis gewis
want elkeen voel
hy moes meer kry
Die stof gaan lê
maar
weer op die klip tot dit
reën
en sy laaste woorde:
waar gaan dit alles
tog heen
’
It
is moreover true to what the American writer, Whitney Otto, has
remarked ‘No one fights dirtier and more brutally than
blood;
only family knows its own weakness, the exact placement of the
heart’. Their rivalry has led to the distress, frustration
and
condemnation of not only the testatrix but, seemingly, also one of
the attorneys who, at some stage in the raging battle, was
involved
in their infighting, which caused him to vividly express himself as
follows in an email to Andrew:
‘
Your dishonesty
and obsequiousness are the pillars upon which you and…your
brother have built your wretched lives. You are
like two vultures
feeding off the corpses of your dead parents. So ugly and
distasteful. Conduct becoming of the pond people. Repulsive.
There is
a special hell for you guys who are mirror images and that is to
spend eternity with only one another as company.’
[4]
Douglas and his wife moved to South Africa from Kenya in 1963 and
founded the well-known Sapekoe Tea Estates, in Tzaneen. They
were
married for 54 years. Douglas, if the letters written by him that are
before this court and the descriptions of him by family
members are
anything to go by, was a
pater familias
in the true sense:
vexed in traditions, rigid in his beliefs and strong willed. Richard
is married and three children were born
from the marriage. He
qualified in law and after a stint in the diplomatic service and
thereafter farming for his father on his
Bredasdorp farms, he joined
the Cape Bar where he practiced as an advocate until 1998. Richard
and his family lived in England
from end 1997 until 2012. During that
time he frequently visited his parents at Grey Mists. After the death
of his mother he went
to live on the farm. In October 2006, he for
the first time learned from D’Arcy-Herrman that the August 2006
will was in
existence and he was placed in possession thereof as well
as the trust directive on 19 December 2006. Andrew never married and
has no children. He is a retired businessman and stock broker, living
in Morningside Johannesburg.
[5]
Central to the dispute between the parties is the trust in respect of
which Douglas and his wife were the appointed founding
trustees. In
2012 the trustees of the trust were Pat, her two sons and Peter
D’Arcy-Herrman, at the time practicing in Tzaneen,
and who had
become an esteemed, long standing friend of the Penwill family, until
August 2008, when he resigned as trustee of the
trust as well as
executor in the deceased estate of Douglas. The trust is the sole
shareholder in a company known as DJ Penwill
Properties (Pty) Ltd
(the company). The company was owned and controlled by Douglas and is
the registered owner of seven valuable
farms in the Bredasdorp
district, in the Western Cape Province (the Cape farms). Their
present value, although disputed by Andrew,
amounts to some R14m. The
family farm Grey Mists, where the August 2006 will was executed, was
purchased by Douglas and his wife,
who were married out of community
of property, jointly, some 20 years prior to his demise on 4 October
2000. In his will, dated
7 August 2000, Douglas bequeathed one half
of his deceased estate to the trust and the other half to his wife.
The administration
of his estate has still not been finalised. The
trust however, is the vested beneficiary of Douglas’s one half
of Grey Mists
and the trust will also, in terms of the wills executed
by Pat prior to the August 2006 will, inherit her half share of Grey
Mists
and thus become the owner of the entire farm.
[6]
The beneficiaries of the trust according to the trust deed, dated 26
June 1994, are Douglas, his wife and ‘any children
or other
relatives of Douglas and Pat as decided by the trustees from time to
time’ and further ‘any institutions,
or persons nominated
by the settlor (Douglas) either by written direction to the trustees
or by way of testament’. According
to the minutes of a trust
meeting, held on 6 March 1998, at which were present Douglas, his
wife and D’Arcy-Herrman, Richard’s
three children were
added as beneficiaries of the trust. The meeting and the authenticity
of the minutes, counsel for the defendant
has informed me, are in
dispute to which I shall revert. In his evidence before this court
Richard revealed that his wife, Ute,
had recently been added as a
further beneficiary of the trust. Assuming this to be the true status
of the trust, Richard and his
family are ⅚
th’s
beneficiaries of the trust as opposed to Andrew’s ⅙
th
share.
[7]
Three wills executed by Pat are relevant for present purposes. On 21
February 2003 she signed a will in which the trust is the
beneficiary
(the February 2003 will). On 17 May 2006 she executed a will in terms
of which the trust was likewise the beneficiary
of her undivided
half-share in the farm Grey Mists but added thereto, that her movable
assets be divided in equal shares between
her sons (the May 2006
will). On 30 August 2006 she signed two documents: firstly, the
disputed August 2006 will, in which
her entire estate is divided
equally amongst her sons without any mention of the trust and
secondly, a directive, in effect dissolving
the trust (the trust
directive). It is common cause that Ms Pat Penwill was mentally
incapacitated by February 2007. She died on
7 June 2012.
The
litigation between the parties
[8]
On 25 October 2012 the present action was instituted. The initial
relief sought was for a declarator that the August 2006 will
‘is
void and of no force and effect’ and for upholding the February
2003 will for the purpose of administering the
deceased estate. Prior
to trial and after discovery of documents by the defendant the
plaintiff for the first time became aware
of the May 2006 will. This
prompted the plaintiff to amend the particulars of claim to include a
challenge to the validity of the
May 2006 will on the same grounds.
The amendment was brought during the opening address at the
commencement of the trial and was
not opposed. I propose to formally
grant the amendment at the end of this judgment. It is not in dispute
that, if the plaintiff
is successful in its claim, the May 2006 will
follow the fate of the August 2006 will and I therefore propose to
deal with both
wills on the same footing. I will refer to the two
wills as the contested wills.
[9]
The plaintiff’s challenge to the validity of the contested
wills is based on two grounds. First, that the testatrix, at
the time
of execution of the August 2006 will, was no longer ‘of a sound
and disposing mind’ and incapable of understanding
what she was
doing as she was suffering from old age and dementia. Second, and in
the alternative, reliance is placed on an alleged
undue influence
exerted on her, in regard to the May 2006 will, by Andrew, and, in
regard to the August 2006 will, by Andrew, assisted
by Ms Jennifer
Emily Hutchinson Wild, a semi-retired advocate from Cathcart in the
Eastern Cape, once an associate member of the
Durban Bar and later a
member of the Bishu Bar, who came on the scene on 29 August 2006, the
day before the will was signed.
[10]
At the commencement of the trial the defendant applied for a
separation of the issue concerning the testatrix’s capacity
to
make a will, from the remainder of the issues. The application was
opposed by the plaintiff. The defendant simultaneously sought
leave
to file a counterclaim out of time which was likewise opposed. At the
conclusion of argument counsel for the defendant withdrew
the
counterclaim which was noted and I consequently ordered the defendant
to pay the costs relating thereto which is reflected
in the order
made at the end of this judgment. The trial thereafter proceeded on
all issues.
[11]
The trial of the matter extended into 13 court days over a period of
30 months. Altogether ten witnesses, three of whom were
experts,
testified. Counsel for the plaintiff in argument disavowed any
reliance on the evidence of one of the plaintiffs’
expert
witnesses, Lt-Col Landman, a handwriting expert. The court
proceedings were on 2 February 2015 adjourned to resume in Tzaneen
for the hearing of the evidence of 3 witnesses for the defendant in
order to meet the needs of one of those witnesses, Ms Keller,
who was
92 years old and declared medically unfit to travel to and attend
court in Pretoria. Numerous wide ranging, often irrelevant
facts and
disputes were raised and debated ad nauseam. I do not consider it
necessary to traverse all those disputes. The credibility
of the
dramatis personae
in this saga was vigorously attacked and has
become pivotal to the determination of the issues.
The
plaintiff’s main claim
[12]
In order to prove the mental state of the testatrix, at the time of
executing the August 2006 will, the plaintiff mainly relies
on the
expert evidence of Prof Grobler, a psychiatrist, in the employ of
Elizabeth Donkins Psychiatric Hospital, in Port Elizabeth.
He
testified that he, at the behest of Richard, examined the testatrix
on 10 January 2007, which was some four months after the
execution of
the August 2006 will. He concluded that she was suffering from
dementia. It is however, common cause that she was
at that time no
longer mentally capable of executing a will. Prof Grobler, however,
unavoidably and understandably so, was constrained
to concede that,
notwithstanding his own observations, the testing performed by him
and the information furnished to him
by Richard, he was not in
a position to express any firm views on her mental condition at the
time of signing the August 2006 will.
In view of the concession and
having regard to the totality of the evidence presented in this court
on this score, I do not consider
it necessary to traverse his
evidence any further.
[13]
The lay evidence adduced on behalf of the plaintiff in regard to the
testatrix’s mental capacity, include the following:
· Richard, who
testified that his mother’s mental condition started
deteriorating in 2003. Although she always remained
in good physical
condition, by 2005 he said she ‘had truly lost her bearings’
and, in February 2006, during his visit
From the United Kingdom for
her 83
rd
birthday celebration, she had not improved at
all. In fact she was living, as he put it, ‘on auto pilot’.
As for her
mental capacity in August 2006, he expressed the firm view
that his mother was most definitely not mentally capable of executing
a will;
· Ms Matlebjane, a
domestic servant in the employ of the testatrix at Grey Mists, from
2002 onwards and in particular in
August 2006, who testified
concerning her daily interactions with her employer; and
· Ms McMahon, who
lived on a neighbouring farm and had known the Penwill family, and in
particular, Ms Pat Penwill, after
the death of her husband, quite
well.
[14]
The defendant called the following countering witnesses on this
issue:
· Ms Keller, a
life-long friend and confidant of Pat;
· Trevor Phillips,
a manager at Lumber Mills in Haenertsburg, who had often visited Grey
Mists and was well acquainted with
the Penwills and who, moreover,
was present at the signing of the August 2006 will and the trust
directive and indeed signed as
a witness thereto;
· Ms Spaumer, an
account analyst in the business banking section at the Tzaneen branch
of Standard Bank, who had not only
dealt with Ms Pat Penwill
personally from 2005 onwards, but also facilitated a written loan
agreement Ms Pat Penwill had concluded
with Andrew on 22 August 2006;
· Dr Craig
Golding, a specialist physician, in private practice, practicing at
the time in Bryanston, who had examined Pat
for the first time on 10
May 2006 and thereafter on 31 August 2006, which was the day after
the signing of the August 2006 will.
Dr Golding was requested by Ms
Wild to examine Ms Pat Penwill and to sign a written certification,
prepared by Wild, in regard
to both documents that she was ‘of
sound mind and legally competent to execute’ the two documents;
and lastly
· Ms Wild, who had
met Ms Pat Penwill for the first time on 29 August 2006 and who was
the scribe and facilitated the signing
of the August 2006 will as
well as the trust directive and on the next day facilitated the
certification on the will and the trust
directive by Dr Golding. Wild
thereafter remained in contact with the testatrix and indeed was
involved in the aftermath events
to which I shall revert.
[15]
I do not consider it necessary to traverse the evidence of the
witnesses I have referred to in any detail. Suffice to say that
this
court is faced with mutually destructive versions advancing two
extremes concerning the testatrix’s mental capacity
at the
relevant time. It would moreover not serve any useful purpose to
tabulate and decide the various reasons proffered by the
witnesses
for holding their views, nor the discrepancies, inconsistencies and
improbabilities counsel were admirably able to extract
from the
evidence and relied on in support of the opposing contentions raised
in the heads of argument. Having considered the totality
of the
evidence, I am unable to make any firm findings on this issue, either
way (see
Tregea and Another v Godart and Another
1939 AD 16).
Counsel for the plaintiff readily and, in my view, fairly and
correctly, in argument, did not seriously pursue the main claim.
[16]
Counsel for the defendant referred me to and heavily relied on the
judgment in
Harlow v Becker NO and Others
1998 (4) SA 639
(D) 644-655, in which the
requirements of both
s 4
of the
Wills Act 7 of 1953
and the common
law in regard to the required mental capacity to make a will, as well
as the considerations in regard thereto, were
extensively dealt with.
The plaintiff bears the onus of proving mental incapacity ‘in
the clearest manner’ (
Kunz v Swart
and Others
1924 AD 618
at 692).
Applying those principles to the facts before me I conclude that that
onus has not been discharged and it follows that
the main claim based
on the testatrix’s alleged mental incapacity cannot succeed.
The
plaintiff’s alternative claim: Undue influence
Introduction
[17]
The crucial events before, at and after the signing of the August
2006 will and trust directive occurred over a period of three
days,
from 29 to 31 August 2006. Those events are decisive to a proper
consideration of this case. This requires me to carefully
consider
and assess the evidence of Ms Wild who played a pivotal role in these
events. She operated under and in terms of the instructions
of
Andrew, who was clearly the main driving force and master mind in
these events. Andrew, I should mention at this stage already,
was not
called to testify and I shall revert to the question whether a
negative inference against the defendant is warranted. Dr
Golding’s
evidence concerning his examination of Ms Pat Penwill and the
certification appended to the August 2006 will and
the trust
direction is of vital importance and likewise requires careful
analysis. Wild’s involvement, as I have indicated,
extended
well beyond the crucial three day period. Andrew kept her on a paid
retainer at rate of R6 000 per month, from 2007 to
2012, and she
further, after her return home on 1 September 2006, commencing on 3
September 2006, and regularly thereafter, sent
no less than 50
letters to a number of persons between September 2006 and January
2007. Wild energetically and intimately became
personally involved in
the action instituted by Andrew against the trust. Counsel for the
defendant, somewhat euphemistically I
would think, described her
involvement as ‘unorthodox’, juxtaposed to the more
damning depiction by counsel for the
plaintiff, that her conduct was
‘plainly and indisputably fraudulent’. Counsel for the
defendant surprisingly submitted
that the aftermath of events and
Wild’s evidence in regard thereto were not relevant to the
adjudication of the issues in
this matter, and that he considered it
not necessary to address either those events or Wild’s
credibility in regard thereto.
In my view counsel’s approach is
plainly wrong. As to my approach, I propose to consider the totality
of all the evidence,
facts and circumstances in this case as well as
the probabilities arising, in the adjudication of the issues I am
required to determine
(
S v M
2006 (1) SACR 135
(SCA) para
189). For the reasons I will presently revert to, Wild’s
subsequent involvement in the matter and her credibility
in regard
thereto, as well as her credibility in general are critical aspects
in the adjudication of this case, in particular in
regard to the
question whether she unduly and improperly influenced the testatrix
in the execution of the August 2006 will and
the trust directive.
With this brief introduction I now turn to a résumé of
the relevant facts.
The
facts prior to and concerning the execution of the will and the trust
directive
[18]
I shall first deal with the evidence of Wild from the inception of
her involvement with Ms Pat Penwill until the signing of
the will and
the trust directive. As for the certification of those documents by
Dr Golding the very next day, I propose to mainly
examine the
evidence of Dr Golding.
The
evidence of Ms Wild concerning the execution of the will and trust
directive
[19]
Wild was first informed of the problems with the finalisation of the
Douglas Penwill deceased estate at a social dinner conversation.
The
name of Andrew came up after she had expressed a view concerning the
impossibility of sub-division of agricultural land without
approval
of the Minister of Agriculture. On 22 August 2006 she was formally
‘briefed’ by an attorney, one Sipho Mkhize,
whom she had
known very well. She was ‘briefed’ in the following
manner:
‘
It was on 22
August and basically Sipho's brief to me was: 'Here is a problem.' He
did not even really explain what the problem
was. He said there is a
problem that he got from Baden (her first ex-husband) with a trust
and estate that is being outstanding.
It involves this family. Okay?
And he said: 'I will get the fellow to phone you' and then Andrew
(Penwill) phoned and I just said
to him when he was speaking, he is
not a man of a few words, My Lord and it is not always crisp and to
the point. I said to him:
'Listen, this involves an estate. I want to
speak to the executor. I want to come and speak to the executor and
the trust this
and [indistinct].' I said: 'No, no, no, no. No, no. I
will come and speak to the executor and then I will see what the
problems
are.'
In
cross-examination she said that she was briefed to ‘sort out
the Penwill estate’ but that no name of a client was
furnished
to her.
[20]
The ‘briefing’ of Wild by Sipho Mkhize was hotly
contested. At best for Wild this happened in the most unusual
and odd
manner and circumstances. Although I am not inclined to accept that
the Bar rules concerning briefing of an advocate by
an attorney were
either observed or complied with, I do not consider this an issue
that requires determination in this matter and
it is accordingly not
further dealt with.
[21]
On the first available day she could fit in, which was on 29 August
2006, Wild flew from East London to Johannesburg.
By prior
arrangement Andrew collected her at the airport where they met for
the first time. They travelled to Haenertsburg. The
conversation
en
route
was of a general nature without any reference to the
Penwill estate. They first stopped at the Grey Mists home where she
met Pat
for the first time. She told Pat that she was a lawyer and
that she had an appointment to see D’Arcy-Herrman that
afternoon.
It was already late in the day and she and Andrew
proceeded to D’Arcy-Herrman’s office in Tzaneen. Their
ensuing conversation
concerned
inter alia
the sub-division of
the Cape farms in respect of which D’Arcy-Herrman informed her
that the Minister of Agriculture had refused
consent for the
sub-division. He handed to her the Douglas will, as well as the first
liquidation and distribution account in the
deceased estate of
Douglas, in which he was the appointed executor. Among the documents
was a loan agreement in terms of which
the trust assumed liability
for the payment of a loan to Andrew, to which I shall revert.
D’Arcy-Herrman assured her that
the will was not ‘the
problem’ as there was ‘nothing controversial, ambiguous
or vague there’. He then
said: ‘The problem is actually
the trust’ and gave her a copy of the trust deed.
Interestingly, she made no mention
of enquiring from D’Arcy-Herrman
what
the problem with the trust was. D’Arcy-Herrman
enlightened her with details concerning the brotherly enmity between
the Penwill
brothers, to which he added that he and his wife were
‘just caught in the middle’. They agreed on a follow-up
meeting
the next afternoon and she and Andrew returned to Grey
Mists.
[22]
At Grey Mists they had dinner with Pat. A normal dinner table
discussion ensued. It was already late at night and they all
retired
to their bedrooms. While Wild was in her downstairs bedroom perusing
the documents she had been given by D’Arcy-Herrman,
there was a
knock on the door and Pat walked in. A conversation started. Pat
seemed starved for company. She started telling
her about her
late husband, who appeared to have had ‘a hugely strong
appearance’ in the family and that she was worried
about the
way things were going as her sons, or as she referred to them as ‘the
boys’, were constantly bickering and
fighting. She mentioned
Richard, who was in England, that Andrew had neglected her and that
they were both ‘more interested
in her things’. Wild
explained to Pat that she had read the Douglas’s will, showing
that she was entitled to half of
Grey Mists and that she could stay
there as she had that right for all her life although Douglas had
given it to the trust. The
conversation then proceeded as follows:
‘
And she said: 'I
do not care for the trust.' And then she basically told me that it
was her husband's idea and that... I cannot
remember her exact words,
My Lord, but what she imparted to me was that, she and Peter
D'Arcy-Herrman were left in the middle with
these two boys fighting
on either side and that had been exactly what Peter D'Arcy-Herrman
had communicated to me as well and basically
she said to me: 'Why can
we not stop with this trust? Why can we not stop this trust?' And I
said to her: 'Ms Penwill, I have not
looked at the thing yet. I will
have to look at what you are saying.' She said: 'Because if Andrew
takes his, Richard takes his
and I take mine, then there is nothing
to fight about,' which... You know, I have not looked at those trust
issues yet because
I have not read the trust deed yet, but I said to
her: 'Ms Penwill, I will look into it. I will see what the position
is,' because
normally when you have a deadlocked trust it is possible
to dissolve that trust. So that, that was what was in my mind at that
time was, whether this thing... Because she and Peter are caught in
the middle neutral so to speak and then the two boys on either
side.
Well, I gave her that promise. I said to her: 'Have you got any
papers?' And she said to me: 'My papers are upstairs.' So,
I said to
her: 'Well, do not worry about it now. It was actually getting quite
late. We will look at the thing tomorrow morning'
and she said to me:
'Please help me.' And I said: 'Of course I am going to do that. Of
course.'
[23]
The next morning Wild ‘carefully read’ the trust deed.
That is when she stumbled on clause 21.4 of the trust deed.
I
interpose to refer to this clause in the trust deed which provides as
follows:
‘
The total of the
balance of the trust fund shall vest in the beneficiaries and shall
be distributed to them as directed by the survivor
of Douglas and
Pat, by way of last will and testament or by direction in writing
given to the trustees, failing which direction,
within the absolute
and unanimous discretion of the trustees.’
‘
The
Trust Funds’ in terms of clause 1.6 of the trust deed mean:
‘
the aggregate of
all the assets from time to time administered by the trustees in
terms of the provisions of the trust deed including
(but not limited
to) the donation in terms of clause 5 (five) and all income from time
to time earned by the Trustees on the assets
forming part of this
Trust Fund, and not distributed by them in terms of the provisions of
the Trust Deed.’
I
shall revert to a detailed discussion of the clause read in context
of the provisions of the trust deed, later in the judgment.
The
clause provided, it then dawned on her, in the context of the whole
deed, ‘what would happen to the capital of the trust’
and
that in her view, it was ‘absolutely intended’ that
‘either Douglas Penwill or Pat Penwill could determine
the
application of capital…and that the total balance of the trust
would vest in the beneficiaries and [be] distributed
[to] them as
directed by the survivor of Douglas and Pat by way of last will and
testament, or by direction in writing given to
the trustees’.
[24]
Wild and Pat had breakfast together. They then proceeded on a tour of
the house and the rose garden, and, so she continued
to testify:
‘
Then I said to
her: 'The stuff that we spoke about last night, I would like to sit
down and speak to you about it fully' and she
said to me: 'Yes.' And
I said: 'Did you... Have you got your papers?' She said: 'They are
upstairs.' She went upstairs and she
fetched them. We came downstairs
and she and I sat together and I said to her: 'Ms Penwill, I have
read that trust deed and it
seems to me that you have the power to
direct that the capital fund of the trust be split as you asked, to
you, to Andrew and to
Richard.' She said: 'Well, do it.' I said to
her: 'Yes, no, I am going to... I will do it.' She said: 'Do it.' She
said: 'Then
this fighting will stop' and she said she had asked
Peter, but he would not do it because he had been with Douglas and so
there
was this thing of a loyalty to Douglas had wanted, as opposed
to sorting things out and in fact, I must say, that perception was
well founded as well, My Lord, because truly Peter was torn in that
way. He had fought in the war with Douglas Penwill. He had
apparently
played a role in saving his life. I'm not sure exactly under what
circumstances. So therefore, what Douglas had wanted,
was very much
on Peter's mind. You will see from what I tell you from what happened
later, that Peter confirmed that Ms Penwill
had actually asked to try
and separate this thing out and for the boys and her to go their own
ways. So, I said to her: 'Yes, I
will do the trust [indistinct]. I
will do it for you.' She was actually... It was as if I could bring
the fighting to an end then.
You know what I mean? She... 'Do it.'
But then as I looked through her papers because she brought me some,
I saw that there were
two wills in the papers and I looked at that
because one was a 2003 and the other one was also... Was a 2006 and I
took them out
and I looked at them and the very first thing I saw on
those wills was that she was leaving Greymist to the Beverley Trust.
I said
to her: 'Ms Penwill, these wills of yours, there are two of
them? Oh yes. Yes, yes, I know about them.' I said: 'But you have
asked
me to divide up this trust for you, but I think there is a
problem because you have left your half of Greymist to the trust.
Oh,'
she said: 'I did not do those wills. No,' she said. 'Andrew
looked at them [indistinct].' So I said to her: 'No, no. No, no, hold
on. Let us just be clear.' She told me that literally those boys...
Sorry, her sons... I should not refer to them as those boys,
but...
Had write her wills and told her to sign them. Each his own one.' I
said to her: 'No, let me explain this to you because
this is really
important.' I said to her: 'There has been a problem with your
husband's estate. Trust me, if you leave it like
this there is going
to be a huge problem.' She said: 'Do the trust.' I said: 'Yes, but
you cannot leave it with these wills because
you have left stuff to
the trust.' I said to her: 'Ms Penwill, the way you do wills is not
what someone tells you to do. It is
what you want that matters. Now,
forget about what everybody else wants. You tell me what is it that
you want. It is your property.
You' and she said: 'These boys share
and share alike. Equally to the boys. Share and share alike.' So, I
said to her: 'That is
fine by me.' So, I said: 'Are you sure that is
what you want?' She said: 'That is what I want.'
They
then discussed and agreed who the executor for the will would be.
Having discussed a few other matters she borrowed Pat’s
Pajero
vehicle, and on roads she was not familiar with, on her own travelled
in the direction of Tzaneen, in search of a computer.
She happened to
find one at the Protea Hotel and proceeded to type the two documents
on one of their computers. On her return to
Grey Mists she went
through the two documents she had typed with Pat, who wanted to sign
them there and then, but Wild explained
to her that the signing would
have to wait as there were no witnesses available to attest to the
documents. Andrew was around.
Trevor Phillips was called by Andrew on
his cell phone and he arrived later. They first had tea and whilst
having tea, Pat conversed
with Phillips. Wild then read through the
documents in the presence of Phillips and Pat confirmed that she was
happy with them
and she then signed. Wild and Phillips signed as
witnesses. The provisions of the will read as follows:
‘
1.
I hereby revoke, cancel
and annul all previous wills, codicils and testamentary dispositions
previously made by me.
2.
I hereby nominate,
constitute and appoint GORDON KEITH HAY, Director of MACROBERTS INC.,
Pretoria to be my Executor and I direct
that he shall be exempt from
being required to furnish security for the performance of his duties
hereunder.
3.
I bequeath my entire
Estate to my sons ANDREW DONALD JONATHAN PENWILL and RICHARD DOUGLAS
PENWILL in equal shares, share and share
alike.
4.
If either of my sons
predecease me:
4.1 leaving lawful issue,
then that son’s share shall devolve upon his children per
stirpes;
4.2 without leaving
lawful issue, then that son’s share shall devolve upon my other
son.
5.
I direct that no benefit
devolving hereunder shall form party of any joint, community or
accrual regime of any estate of any beneficiary.’
[25]
At the scheduled meeting that afternoon with D’Arcy-Herrman,
she handed the original documents to him and he in turn
made copies
and gave them to her. That evening she reflected on Richard’s
possible opposition to the latest developments
and decided to have
Pat medically certified. She discussed this with Pat who was only too
willing to oblige. Andrew happened to
be around and she told him that
his mom needed ‘to see her doctor with some documents’
without mentioning the will
and trust directive because she reasoned
it was ‘not right’ to ‘discuss the will of a parent
with the children
at all’ and, as for the trust, she was
confident that D’Arcy-Herrman, as the managing trustee, would
formally deal
with the unveiling of the trust directive to the
Penwill brothers.
[26]
Andrew managed to arrange an appointment with Dr Golding the very
next day, and Dr Golding in turn was able to ‘squeeze
in’
the appointment in-between other appointments. Pat was ‘absolutely
delighted’ to leave Grey Mists being assisted
and accompanied
by Matlebjane, after some four hours of travelling later they,
including Andrew, arrived at Dr Golding’s
consulting rooms in
Rosebank, Johannesburg.
Dr
Craig Golding
[27]
Dr Golding confirmed that his diary was full that day and that he was
asked to squeeze Ms Penwill in. He conducted a shortened
consultation
with her. She had told him before that she wanted to leave her estate
to her two sons, that she was ‘fed up’
with their
fighting and that she wanted this to end. Wild gave him the documents
that were signed the previous day and she requested
him ‘to
spend some time with her to ensure that she understands the contents
of the will and the change in the trust’
being ‘to the
three of them, the survivors, the two kids and her and the will if
anything happens to her that her estate
be left to her two sons’.
He considered that he was tasked to ‘briefly understand what Ms
Penwill wanted ‘ and
‘she stated again that she wanted to
leave her estate to her two children, that the trust needed to be
reduced to the three
of them and that that was her desire’.
[28]
Dr Golding further testified that, having read the documents to her,
she was asked whether she understood the contents thereof.
He further
requested her to explain what she had read, and continued:
‘
And
simplistically she said what I have verbalised, that she was tired of
the fighting, it is time that it comes to an end and that
she wanted
to leave her estate to her two sons.
On
the trust document what was the answer there? --- The trust document,
I said to her, do you understand the content of this? So
she said it
has been reduced to the three of us and if I die, I want my estate
left. So she used very simplistic communication,
but I was satisfied
that she understood the content.’
Wild
typed the wording of the certification on one of the computers and it
was photo copied onto the documents which he then signed.
The wording
thereof reads as follows:
‘
I, Dr C Golding,
MBCHB (PTA), MMed (PTA), FCP (SA), Specialist Physician, hereby
certify that I have evaluated and assessed Patricia
Margaret Jean
Penwill as being of sound mind and legally competent to execute this
document, the nature of and effect of which
she fully understands.’
Dr
Golding readily conceded that he was not furnished with the relevant
background information in regard to the trust and that he
had not
been placed in possession of the trust deed.
Evaluation
[29]
The onus of proof in regard to the alleged invalidity of the will
based on undue influence, rests on the plaintiff (see
Spies NO v
Smith en Andere
1957 (1) SA 539
(A) 545F-548A;
Diehl v The
Master
[2008] 4 ALL SA 430
(T); LAWSA vol 31 para 285). The
headnote in
Spies
correctly translates and paraphrases the
ratio decidendi
in the judgment as follows:
‘
A last will can be
declared invalid where the testator is moved by artifices of a nature
such as to justify their being equated,
by reason of their effect to
the exercise of coercion or fraud, to make a bequest which he would
otherwise not have made and which,
therefore, would express another
person’s will rather than his own. In such a case we are
dealing, not with the genuine
wishes of the testator, but with the
substitution of the wishes of another person, and the will is not
maintainable.
The amount of pressure or
urging ach leads to invalidity may vary from case to case. The
mental state of the testator, his
ability to resist instigation and
prompting must be taken into consideration. The relationship between
the persons concerned can
also be important. It might be such
as to give rise to a
metus reverentialis.
This alone, however
relevant, is not sufficient but might be present to such an extent
that the request of one person to another
might be taken as a command
which must be obeyed. The mere existence of a relationship which
might involve
metus reverentialis
does not, however, of itself
give rise to the presumption of a substitution of the will of another
where a person subject to the
authority of another makes a bequest to
the latter. As with coercion and fraud, a fraudulent substitution of
wishers by
artes captatoriae
is not presumed. It must be
proved even where a relationship of power is involved
cum sola
potentia metum non arguat.
And if after the drawing up of a will
a certain period has elapsed during which the testator could have
altered his will, had he
wished to do so, then this is a circumstance
which should be taken into consideration together with the other. It
could indicate
that the will was not really made against his own
wishes or that he had subsequently voluntarily and tacitly confirmed
it.’
[30]
Against this background and applying the above principles to the
facts of this matter, the first question for determination
is whether
Wild’s understanding of the effect the termination of the trust
would have had on the strained relationship of
the Penwill brothers,
was correct. It will be remembered that this was the sole concern of
the testatrix which she repeatedly had
communicated to Wild. Wild,
having read the trust deed overnight, then informed her that the
trust capital could be evenly distributed
which, without more ado,
met with the approval of the testatrix, to which she added, in line
with what she was told by Wild, ‘then
this fighting will stop’.
[31]
How the dissolution of the trust was to stop the fighting Wild did
not explain to the testatrix. Nor did she offer any explanation
how
she perceived this could be achieved in dissolving the trust. It was
merely presented to the testatrix as a fait accompli.
The testatrix
slavishly accepted and relied on what Wild had represented to her.
After that it was eating out of her hand. It accordingly
becomes
necessary to determine whether the dissolution of the trust,
objectively considered, would have brought an end to the fighting
which was what the testatrix had wished to achieve.
[32]
It is necessary to postulate two scenarios concerning the trust. The
first is that the beneficiaries of the trust included
the children
and, perhaps, the wife of Richard. Assuming that to be so, the
unilateral dissolution of the trust would have been
invalid as the
rights of the beneficiaries had by then already vested. Further,
assuming it could be done, it would not have solved
any relationship
problems but indeed would have compounded matters, as the
beneficiaries on Richard’s side would have outnumbered
Andrew,
as a single beneficiary. I am alive to the fact that the number of
beneficiaries of the trust as well as the dissolution
thereof, are
the subject matters of litigation between the parties, which I am
presently not concerned with and I accordingly refrain
from making
any findings in this regard. The other scenario is that the Penwill
brothers, in terms of the trust deed and their
rights prior to the
August 2006 will, would have been the beneficiaries in equal shares
in the trust and Ms Pat Penwill’s
will. In the event of discord
between trustees, remedies would have been available for dissolving
the trust or removal of one of
the trustees. The termination of the
trust does not in reality secure any change as for the relationship
between the brothers.
In terms of the August 2006 will they were to
inherit in ‘equal shares, share and share alike’, albeit
not through
the trust instrument. The disappearance of the trust
would still have necessitated the brothers working together in the
implementation
of each receiving his equal share in the estate. The
estate would have consisted mainly of immovable properties, which
could not
simply be divided between them as it became apparent
regarding the Cape properties. The sub-division impasse in regard to
the Cape
farms resulted in the administration of the deceased estate,
16 years after the death of Douglas, still not having been finalised.
The utopia foreseen by the testatrix ‘because if Andrew takes
his, Richard takes his and I take mine, then there is nothing
to
fight about’ accordingly remained illusionary.
[33]
The possibility of dissolving the trust was ‘discovered’
by Wild on reading the trust deed and she unabatedly persisted
with
it. The testatrix, considering her responses, understood that an
immediate simple division of the trust (the trust funds,
as she was
informed by Wild) would have solved the difficulties. But, Wild then
realised the difficulty emerging concerning sub-division
of the
farms. She then mentioned ‘there has been a problem with your
husband’s estate’ which ‘if you leave
it like this
is going to be a huge problem’. The nature of the problem
regarding the deceased estate was neither explained
to Pat nor in any
manner further dealt with. In her response the testatrix once again
simply reverted to her wish that they should
inherit in equal shares.
[34]
I am not satisfied that, on her own version, Wild properly advised
the testatrix in regard to her wish that her sons be treated
equally.
Wild’s interaction with the testatrix was superficial and
anything but a model of clarity as to proper advice and
assistance
concerning the consequences of dissolving the trust. Wild was in a
position of authority and the testatrix not only
confided in her but
blindly accepted what was put to her. Wild in addition, was acutely
aware that the testatrix was susceptible,
if not vulnerable (the term
used by Dr Golding) to influence, in particular as Wild had been made
aware that both her sons had
forced her to sign the previous wills.
The exposure to and the real possibility of manipulation of Ms Pat
Penwill therefore cannot
be excluded. I am accordingly not satisfied
that the August 2006 will and trust directive properly reflect the
testatrix’s
‘vry en uiterste wilsbeskikking’ (
Spies
545H).
[35]
The evidence of Dr Golding is instructive as to Ms Pat Penwill’s
understanding of the trust directive. Except for once
again
expressing the desire to leave her estate to her two sons and when
specifically asked concerning the trust directive, she
said that ‘it
has been reduced to the three of us’. Her response must be
viewed against the evidence of Wild that,
on the previous day, Ms Pat
Penwill, in no uncertain terms, desired to ‘stop’ the
trust. Had it been her desire one
would have expected to say exactly
that once the trust directive had been read to her.
[36]
The wording of the trust directive, on its own, without the
assistance or knowledge of the content of the trust deed, does
not
expressly state that the trust is dissolved. It reads as follows:
‘
I, [Name and
address of Ms Pat Penwill], one of the first and presently one of
four trustees of the Beverley Trust invoke the power
accorded to me
in clause 21.4 of the trust deed and direct the trustees, after
receipt of the inheritance from the estate of my
late husband Douglas
John Penwill, to vest the total balance of the trust fund in the
beneficiaries of the trust, namely myself,
Patricia Margaret Jean
Penwill and my sons Andrew Donald Jonathan Penwill and Richard
Douglas Penwill in equal shares of one-third
each and to effect such
distribution accordingly.’
Dr
Golding interestingly, when testifying about the August 2006 will and
the trust directive, not once specifically referred to
a dissolution
or termination of the trust. It is my impression of his evidence that
not even he understood the trust directive
to provide for the
dissolution of the trust. His understanding, admittedly not having
read clause 24.1 of the trust deed, and as
is apparent from his
evidence, is that the trust would be ‘divided’ between
the three of them. He testified that he
was requested by Wild to
ensure that Ms Pat Penwill understood ‘the change in trust’
and that Ms Pat Penwill stated
that ‘the trust needed to be
reduced to the three of them’ and ‘because of the
fighting and she wanted an end
to it’ which he in
cross-examination conceded was ‘compatible’ with the
continued existence of the trust.
[37]
Even if I were to be wrong in the findings I have thus far made, the
question whether undue influence was exerted on the testatrix
must be
considered on the totality of the evidence, in particular having
regard to the conduct of the defendant and Wild subsequent
to the
execution of the August 2006 will and the trust directive and in
regard thereto, their credibility and the probabilities
arising from
the facts of this matter.
[38]
The starting point is to consider the peculiar circumstances
surrounding the execution of the documents. The events are
characterised
by unexplained bewildering haste in getting the
documents typed and signed by the testatrix. The consultation with Dr
Golding the
very next day followed in the same vein. The true reason
for the rushed consultation in Johannesburg remains a mystery. The
rapid
certification of the documents, Wild explained, was in
anticipation of the possibility of Richard challenging the validity
of the
will. No attempt was made either to involve Richard in, or,
inform him of the events, which undoubtedly significantly affected
him. Axiomatically, if Wild’s proposal of terminating the trust
would have produced the miraculous evaporation of the brotherly
enmity, there would not have been any need for surreptitiously
obtaining an amended will and in addition, to close every possible
challenge to its validity. The inference is inescapable that Richard
was deliberately excluded and ignored for an ulterior purpose,
in
particular viewed against the backdrop of the subsequent events,
which I now turn to deal with.
The
action instituted by Andrew against the trust
[39]
In November 2006 Andrew instituted an action against the trust in
which he claimed payment of the amount of R1,740,099-74,
in terms of
an agreement, dated 11 August 2003, which provided for the trust
assuming liability for the claim in that amount he
had against the
deceased estate of Douglas. The defendant in the action was cited as
‘The Trustees for the time being of
the Beverly Trust’
who, at the time were Andrew, Richard (who was then living in the
United Kingdom) D’Arcy-Herrman
(he was 87 years old at the
time) and Ms Pat Penwill, who lived at Grey Mist. On 23 November
2006, a simple summons was issued
by George Traub Attorneys of
Pretoria. It was served only on Ms Pat Penwill, who not unbeknown to
both Andrew and Wild was in an
advanced stage of dementia. No notice
of intention to defend was filed and, on 4 April 2008, a request for
default judgment was
issued by Bekker Attorneys of Pretoria, once
again addressed to Ms Pat Penwill, as a trustee of the trust. The
notice was affixed
to the principal door of the Grey Mists homestead,
in the absence of Ms Pat Penwill, who since January 2007 had been
living in
Johannesburg with Andrew. Wild conceded in
cross-examination that this amounted to dishonesty. On 12 September
2008 default judgment
for the amount claimed was entered against the
trust. Through Bekker Attorneys an attachment was effected of a cash
deposit of
R72 422-22, held by the trust in a Stanlib account. Andrew
further caused the attachment of the shares held by the trust in the
company. The mandate of Bekker Attorneys was then terminated and John
Ford of John Ford & Associates, in Johannesburg, was
instructed
to arrange a sale in execution of those shares by the sheriff of
Durban North. Those shares (750 ordinary shares and
1000 preferrent
shares) were then sold at a sale in execution held on 29 July 2009 at
the offices of the sheriff in Durban North.
[40]
The sale in execution was attended by Wild and her long standing
friend and colleague at the Bar, Natalie Lange, who practiced
as an
advocate at the Durban Bar. Lange purchased the shares for the meagre
sum R27 300. She, in turn, immediately ‘offered’
the
shares for sale to Wild, who ‘acted’ as Andrew’s
representative, for the sum of R34 300 and, on 31 August
2009,
signed a written agreement confirming the ‘sale’. Andrew,
through Wild, telephonically accepted the offer and
thus became the
owner of the shares and the company.
[41]
The sale price of the shares, on every possible construction, was way
below their true value. The company was debt-free and
its principal
assets consisted of valuable farms worth millions of Rand. The net
result was that Andrew became the sole owner of
the shares in a
company with assets with a municipal value of some R15m, for a mere
R34 300, in respect of a claim against
the trust in the sum of
R1,74m. And there it does not end: theoretically Andrew’s
entitlement to payment of the balance of
the judgment debt, in the
sum of R1,64m, remained alive.
[42]
On 11 May 2010, following the sale in execution and the subsequent
sale of the shares, attorney John Ford convened a shareholders
meeting for the company at which both Ms Pat Penwill and Richard were
removed as directors of the company and new auditors appointed.
The
meeting was attended by Andrew, in his capacity as the sole
shareholder of the company, and Wild ‘on behalf of Mr ADJ
Penwill’. Andrew voted himself in as the sole director of the
company.
[43]
Richard only became aware of the events described above following
upon a receipt of registered letter from the secretary of
the
company, in April 2010, while in the United Kingdom. This
unsurprisingly prompted him to conduct a protracted investigation
in
order to obtain all the facts relating the default judgment and its
aftermath. Needless to say, to his shock and dismay, he
discovered
that he was the victim of an elaborate well-orchestrated scam. He
contacted an attorney friend in Johannesburg and arranged
to come to
South Africa to deal with the matter. An extensive consultation with
his legal advisors was held in October 2010 and
an application for
rescission of the default judgement was launched (the rescission
application) soon thereafter.
[44]
The relief sought in the rescission application, in summary, was for
rescission of the default judgment, the setting aside
of the warrant
for execution and the sale in execution in respect of the shares held
by the trust in the company, the return of
those shares to the trust
and the setting aside of the attachment of monies held in the bank
account of the trust. A punitive costs
order was sought. Voluminous
papers of some 800 pages were filed. Andrew launched a separate
application for security for costs
against Richard, which mounted
another 250 pages to the paper mass. By direction of the Deputy Judge
President the two applications
were heard together in a special
motion and it came up for hearing before Ranchod J. At the heart of
the main application were
the allegations made by Richard imputing
improper and indeed fraudulent conduct to Andrew, Wild and Lange. A
number of technical
points were raised on behalf of the respondents
but none found favour with the learned judge. In the course of his
judgment Ranchod
J made a number of adverse findings and comments
concerning the conduct of Andrew, Wild and Lange. The learned judge
having considered
the entire chain of events, from when summons was
issued until the eventual transfer of the shares, came to the
conclusion that
it showed ‘an elaborate scam’ and, with
regard to the sale in execution, that ‘the inference is
inescapable that
this was part of the well-orchestrated plan to
eventually have the shares in the possession of Andrew’. The
learned judge
moreover expressed ‘grave misgivings’ about
the conduct of the two advocates, Wild and Lange. The relief sought
by
Richard was granted with a punitive order as to costs and Andrew’s
application for security for costs was dismissed likewise
with a
punitive costs order.
[45]
Leave to appeal was sought but refused by Ranchod J. A subsequent
petition to the Supreme Court of Appeal was dismissed with
costs save
that leave to appeal was granted to this court in respect of
paragraph 9 of the order in terms of which Andrew was removed
as a
trustee of the trust. The appeal on that limited ground was however,
not pursued and has accordingly lapsed. Andrew accordingly,
at this
stage, is no longer a trustee of the trust.
Bekker
Attorneys
[46]
I have already referred to Bekker Attorneys who, almost two years
after the issue of summons, took over from Traub Attorneys
and filed
a request for default judgment in the action. During the present
trial the plaintiff’s legal representatives together
with
Richard, out of their own accord, consulted with attorney Hennie
Bekker of that firm and they were allowed to retain a copy
of the
notes he had made on the case file cover. The notes undoubtedly, show
that the details recorded were obtained from Wild.
The notes reflect
that Wild had ‘instructed’ him on the continuation of the
action, which of course implicates her
in being instrumental in
procuring the default judgment against the trust and further,
warrants the inference of impropriety arising
concerning the service
of the application for default judgment at the Penwill homestead on
the farm Grey Mists, well knowing that
Ms Pat Penwill was suffering
from dementia. Wild baldly and disingenuously denied ever having had
any contact with Bekker.
[47]
Richard was re-called to testify concerning the meeting held with
attorney Bekker. He testified that Bekker, in the consultation
that
followed, light-heartedly referred to Wild as ‘the instructing
advocate’. A copy of the file notes was handed
in. In
cross-examination of Richard by counsel for the defendant, some vague
reference was made to ‘the client/attorney privilege’
which counsel put to Richard, remained of full force and effect
notwithstanding whether the attorney still appeared for the client
or
not. In cross-examination Wild defiantly accused Richard of having
‘deliberately reconstructed’ the notes in order
to
support the allegations he had made against her. She unscrupulously
denied that Bekker could have made the notes or that she
ever had any
link with Bekker attorneys. These wide ranging, unfounded allegations
were notably not put to Richard in cross-examination.
Wild’s
evidence in this regard is indisputably false and her denial is
rejected. According to the notes made by Bekker the
file was sent to
him by attorneys in Durban, by the name of Preston White &
Associates. Wild conceded in cross-examination
that she knew these
attorneys, that she had interaction with them and admitted that some
payments reflected in her bank statements,
had been made by them. The
notes moreover specifically refer to Bekkers’ interactions with
Wild, either telephonically or
in person. Personal particulars
appearing in the notes concerning, for example, her son, evidently
have Wild as their source and
are dispositive of anyone else having
furnished them.
[48]
Counsel for the plaintiff submitted, with which I agree, that the
irresistible inference to be drawn from Wild’s denial
is that a
confirmation by Bekker of the genuineness of the notes would have
‘landed her upon the horns of a prickly dilemma’,
which
would have exposed Wild as the driving force behind an application
for default judgment which in all respects was a well-orchestrated
falsity.
[49]
But there it does not end: the plaintiff’s intention to call
Bekker as a witness was thwarted when an objection was raised
by the
defendant raising an ‘attorney/client privilege’. Counsel
for the defendant intimated that the objection was
raised on the
instruction of Andrew. Bekker was accordingly not called to testify
by either party.
[50]
The defendant’s reliance on an alleged attorney/client
privilege is legally untenable, misconceived and nothing but a
transparent attempt to subvert the true facts relating to the file
notes. The notion of such privilege, in the face of Wild’s
denial that she ever had any contact with Bekker, constitutes a
deplorable attempt to mislead the court. I am accordingly constrained
to comment on the raising of the objection by the defendant’s
legal representatives. As officers of this court, even in the
face of
an instruction to do so, they ought not to have raised the objection.
The raising thereof, accordingly, deserves the strict
censure of this
court.
[51]
Lastly, it is necessary to refer to Wild’s unusual, energetic
involvement in the trial of this matter, underscoring the
inference
that she is the driving force in the litigation. She sat in court for
the entire duration of the plaintiffs’ case
and did not dispute
that she regularly passed notes to counsel for the attention of
Andrew. At the hearing in Tzaneen she was present
when the
defendant’s witnesses testified. Her interest in the evidence
that was tendered was so keen that counsel for the
plaintiff objected
to her presence in the venue and recorded that she nodded her head in
such a way that it suggested answers to
the witnesses. Counsel for
the defendant in response requested her to leave the room. Wild
conceded in cross-examination that her
conduct in this regard was
inappropriate.
[52]
In conclusion Wild, in my view, was an unsatisfactory witness who
clouded issues in proffering long winded, vague and irrelevant
responses. Wild dishonestly and relentlessly, right from the outset,
pursued her own agenda. In regard to the finding by Ranchod
J that
the sale in execution was an elaborate scam, Wild disingenuously
maintained that ‘it was a
bona fide
attempt to recover
shares that were going up on a public sale in execution’, but
reluctantly, later, conceded that it was
a scam ‘only to the
extent of the sale’. The evidence reveals a carefully
pre-planned scam to strip Richard of his
interest in the company.
Both Wild and Lange faced, or, are facing charges of unprofessional
conduct brought against them by the
Bisho Bar. Counsel for the
defendant unconvincingly sought to defend the bona fides of the sale
in execution, but was constrained
in the debate that followed in
argument, to concede, and correctly so, that a fraud had indeed been
perpetrated.
[53]
The integrity and professionalism of Wild and Lange acting in their
professional capacities as advocates, in my view, have
been shown, on
the facts of this matter, to fall dismally short of the norms and
standards applicable to the profession of an advocate
and I
accordingly, as I intimated to Wild at the conclusion of her
evidence, propose to order that a copy of this judgment be forwarded
to the General Council of the Bar of South Africa.
The
failure to call the defendant as a witness
[54]
In the circumstances of this case the defendant’s explanation,
if any, on the numerous adverse allegations made and inferences
arising against him was called for. The adverse findings in the
judgment of Ranchod were based on affidavits only, but have now
indeed been shown as entirely justified on the evidence before this
court. The defendant, on a conspectus of all the evidence,
was the
driving force and master mind together with Wild, as his dutiful
lackey, in orchestrating an elaborate and fraudulent scam
with the
sole purpose of prejudicing his brother and enriching himself. The
facts relating thereto were peculiarly within Andrew’s
knowledge and he was best able to testify thereto. An adverse
inference against the defendant for failing to testify, accordingly,
is justified (see
Durban City Council v SA Board Mills Ltd
1961
(3) SA 397
(A) 405A-G).
[55]
One last comment is called for. On 7 April 2016, after the conclusion
of argument in this matter on 23 March 2016, I was placed
in
possession of an affidavit deposed to by the defendant, sent by him
to my secretary, by email. The defendant obviously bypassed
all
protocol as the affidavit was also sent without the knowledge or
consent of his attorneys of record. I only cursory scanned
through
the affidavit which revealed an attempt to bring certain facts
pertaining to this matter, to my attention. I immediately
informed
counsel on both sides of the events and indicated that I would not in
any way have regard to the contents of the affidavit
in the
adjudication of this matter. I do however take into account the
untoward attempt by the defendant to inappropriately bring
further
information to my attention.
[56]
In view of the findings I have made, the punitive costs order asked
for by counsel for the plaintiff, is justified and, in
my view, the
appropriate sanction to be imposed as a mark of this court’s
disapproval of the defendant’s conduct (
Nel v Waterberg
Landbouwers Ko-Operatieve Vereeniging
1946 AD 597
at 607;
Rautenbach v Symington
[1995] 1 ALL SA 184
(O)). I do however
consider it fair and appropriate to disallow the costs relating to
the hearing in Tzaneen on 2 February 2015,
as the testimony of those
witnesses was confined to the plaintiff’s main claim in respect
of which he has not been successful.
[57]
In the result the following order is made:
1.
The plaintiffs’ amendment in terms
of
rule 28(10)
, dated 4 September 2013, is allowed.
2.
The wills executed by Patricia Margaret
Jean Penwill, dated 17 May 2006 and
30 August 2006, are
declared null and void.
3.
The third defendant is authorised and
directed to accept the will of Patricia Margaret Jean Penwill (the
deceased), dated 21 February
2003, as the deceased’s last will
and testament for the purpose of administering the deceased’s
estate in terms of
the
Administration of Estates Act, 66 of 1965
.
4.
The second defendant is ordered to
administer the deceased estate of Patricia Margaret Jean Penwill in
accordance with the provisions
of the last will and testament of
Patricia Margaret Jean Penwill, dated 21 February 2003.
5.
The first defendant is ordered to pay
the costs of the action, excluding the costs relating the hearing in
Tzaneen on 2 February
2015, but including:
5.1
the costs of the hearing on 9 September
2013; and
5.2
the costs consequent upon the employment
of senior counsel,
such
costs to be taxed on the scale as between attorney and client.
6.
It is ordered that a copy of this
judgment forthwith be forwarded to the General Council of the Bar of
South Africa.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFFS
ADV MP VAN DER MERWE SC
PLAINTIFFS’
ATTORNEYS
T DU PRE LE ROUX ATTORNEYS
COUNSEL
FOR FIRST DEFENDANT
ADV H HAVENGA SC
FIRST
DEFENDANTS’ ATTORNEYS
OJ BOTHA ATTORNEYS
DATES
OF HEARING
4, 5, 6 & 9 SEPTEMBER 2013;
27,
28, 29 & 30 JANUARY 2015;
2,
3, 4 & 5 FEBRUARY 2015 &
23
MARCH 2016.
DATE
OF JUDGMENT
20 JUNE 2016