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[2015] ZAFSHC 79
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Els v Jagga N.O. and Others (5024/2013) [2015] ZAFSHC 79; 2016 (6) SA 554 (FB) (23 April 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : 5024/2013
In the matter
between:-
DAWN
DELANE ELS
…...............................................................................................................
Applicant
and
ANTONIE
JAGGA N.O.
…....................................................................................................
1
st
Respondent
MAGDALENA
ELS
…..........................................................................................................
2
nd
Respondent
MEESTER
VAN DIE HOë HOF
….....................................................................................
3
rd
Respondent
FALICITY
DELLIEU
….......................................................................................................
4
th
Respondent
RECONA
BOEDEL & ADVIESDIENSTE
(EDMS)
BPK
….....................................................................................................................
5
th
Respondent
CORAM:
MOCUMIE,
AJP efVAN ZYL, J
et
JORDAAN,
JJ
JUDGMENT
BY:
JORDAAN,
J
HEARD
ON:
13
APRIL 2015
DELIVERED
ON:
23
APRIL 2015
[1] This is an
application for the review of the third Respondent’s decision
not to sustain objections lodged against the
liquidation and
distribution account in the estate of the late I.J.P. Els.
[2] The Applicant is
the daughter and testamentary heir of the late Els (deceased). The
first Respondent is the appointed executor
in the deceased estate who
in turn appointed the fifth Respondent as his agent is dealing with
the estate. The third Respondent
was previously married to the
deceased but divorced from him in 1992. The third Respondent is the
Master of the High Court against
whose decision the application is
aimed.
Background
:
[3] During his
lifetime the deceased was married to the second Respondent which
marriage was dissolved by divorce and which order
incorporated a deed
of settlement entered into between the second Respondent as plaintiff
and the deceased as Defendant. The settlement
was signed on the 6
th
of November 1992 and clause 2 thereof reads as follows;
“
Verweerder
betaal onderhoud aan eiseres in die bedrag van R1650.00 per maand,
die eerste betaling te geskied voor of op 1 Desember
1992 en daarna
voor of op die 1ste dag van iedere en elke daaropvolgende maand tot
en met die Eiseres se dood of hertroue, welke
gebeurtenis okal eerste
mag geskied. Betreffende die voormelde onderhoud jaarliks met
minstens die helfte van die netto verhoging
in die maandelikse
pensioen wat Verweerder ontvang, sal verhoog. Sodanige verhoging sal
inwerking tree vanaf en met ingang van
die einde van die maand waarin
die Verweerder se pensioen aldus verhoog word.”
[4] After the death
of the deceased the second Respondent lodged a claim for maintenance
flowing from the aforesaid consent paper
which claim was admitted by
the executor in the amount of R302774.16. The L & D account
also reflects some cash assets
in the estate to the amount of
R231676.68.
[5] The Applicant
lodged a complaint against the L&D account with third Respondent,
which the third Respondent refused to sustain.
The complaint entailed
in essence an objection to allowing the second Respondent’s
claim for maintenance as a claim in the
estate and secondly the
objection was aimed at the executor not investing the cash assets in
an investment account and earning
interest thereon. It was contended
on behalf of the Applicant that, because of the aforesaid, the
executor should be disallowed
his fees as claimed in the L&D
account.
[6] The Applicant
therefore asked this court to set aside the third Respondent’s
refusal of the objections and to declare
that the second Respondent’s
maintenance claim against the estate is unenforceable and to direct
the first Respondent to
amend the L&D account accordingly.
Secondly it was
asked that this court should declare that the first Respondent failed
to discharge his duties in a satisfactory
manner and therefore to
disentitle him to his fees.
[7] Although the
second and fifth Respondents filed opposing papers, they did not
appear in opposition when the matter was argued.
Only the second
Respondent, who also filed opposing affidavits, opposed the
application when it was argued.
Condonation:
[8] Since the
Applicant resides in Norway, the application was brought somewhat out
of time and she asked for condonation in that
regard. That was not
opposed by any of the Respondents and it appears that the reasons for
the lateness are satisfactorily explained
and, in view of the
importance of the issues raised, I am satisfied that condonation
should be granted.
The
maintenance claim:
[9]
A similar agreement to pay maintenance to the divorced wife in a deed
of settlement that was made an order of court on divorce
was the
subject of the decision in
Colly
v
Colly’s Estate
1946
WLD 83
in which decision the court inter alia found that a wife
getting divorced surrenders a status and give up rights of
substantial
value. The court then poses the question whether a woman
in that position, if she had insufficient means, would be willing to
“burn
her boats” unless her future was secured. The court
found that the plain language of the settlement agreement was that
she
would be maintained until her death or remarriage and that that
was just what the agreement meant. The court remarked “any
woman reading the agreement would be entitled to think that that is
what the language used actually says and meant.” The
court
regarded the clause as a contractual claim with the result that the
legal representative in the estate of the husband would
be bound to
perform such contract.
[10]
In the matter of
Owens
v
Stoffberq
N.O. and another
1946
CPD 226
a similar question arose and the court, relying on Colly’s
case, agreed with the former decision. The court found, if it was
meant that the obligation to maintain the wife would cease at the
husband’s death, that could have been easily inserted in
the
settlement agreement.
[11]
In
Hughes v The
Master
1960
(4) SA 936
(C) a similar question arose and the court, again relying
on the decisions of Colly and Owens (supra) found that the said
decisions
were correctly decided. At p 938 H the court found that he
question whether an obligation was intended to bind the estate would
depend on the terms of the particular contract and the
nature
of the obligation
.
At p 939 the court found that, where the nature of the obligation
required personal performance by a party, it would terminate
at such
party’s death. It however found that the obligation to pay a
certain amount, although that of the deceased, can be
performed by
somebody else, for instance if the deceased arrange with an insurance
company to pay the stipulated sum. The court
therefore found that it
was not an obligation of a personal nature. At p 904 the court inter
alia found that the executor of the
deceased estate is not entitled
to ask for a variation, suspension or rescission of a maintenance
agreement that was made an order
of court.
[12]
In
Copelowitz v
Copeiowitz And Others N.O.
1969
(4) SA 64
(C) the consent paper explicitly bound the husband’s
estate to pay maintenance after his death. The divorced wife applied
for an increase of maintenance against the estate. At p 71 H Van Zyl,
J remarked that he always was of the opinion that the decisions
in
Colly’s estate and Owens were wrongly decided. That appears to
have been the first, and as far as I know, only dissent
with the
aforesaid decisions.
[13]
In this matter the Applicant strongly relied on the decision of
Kruger N.O v
Goss and Another
2010
(2) SA 507
(SCA) and
Hodges
v Coubrough N.O.
1991
(2) ASA 299 (D) for the argument that maintenance orders do not
outlast the lifetime of the person liable to pay. In the same
vein,
so it was argued, maintenance payable in terms of a settlement
agreement should be treated on the same basis and, except
if
specifically declared to be binding on the estate, should terminate
at the death of the person liable.
[14] On behalf of
the second Respondent it was argued that the aforesaid decisions of
Colly, Owens and Hughes are still law and
that maintenance payable in
terms of a deed of settlement, distinct from an order made by court,
constitutes an ordinary contractual
obligation which, according to
common law, binds the estate unless there are sufficient indications
to the contrary.
[15]
It is trite that, when a dispute exists about the terms and effect of
contractual undertakings, the court has to establish
the real
intention of the parties. For the purpose of interpreting contractual
terms or clauses, the court is at large to take
into consideration
all relevant circumstances. In
Bothma-Batho
Transport v S Bothma & Seun
Transport
2014
(2) SA 494
(SCA) p 499 par 12 the learned judge of appeal summarised
it as follows:
“
whilst
the starting point remains the words of the document, which are the
only relevant medium through which the parties have,
expressed their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words,
but considers them in
the light of all relevant and admissible context, including the
circumstances in which the document came
into being. The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away.
Interpretation is
no longer a process that occurs in stages but is “essentially
one unitary exercise”. Accordingly
it is no longer helpful to
refer to the earlier approach.”
[16] In the present
matter, as in the decisions in Colly, Owens and Hughes, the agreement
is silent on whether the obligation will
outlast the lifetime of the
person liable to pay. To that extent it at least contains a latent
ambiguity.
[17] I am of opinion
that an important factor in interpreting the agreement in this matter
is the relative position in which the
parties found themselves at the
time. It can be accepted that, being involved in a divorce, the
parties were not friendly with
each other and rather at logger heads.
The second Respondent as plaintiff claimed for divorce and the
payment of maintenance. If
the deceased chose not to defend the
matter, the second Respondent would have obtained an order for
maintenance at best for the
lifetime of the deceased. (Kruger v Goss
supra and Hodges v Coubrough N.O. supra). It is hard to believe that
the deceased as defendant
would have been willing to give her more
than she would have been entitled to in an undefended divorce.
[18] As far as the
nature of the obligation is concerned, it was dealt with in Hodges v
Coubrough N.O. (Supra) at p 305 where in
the learned judge referred
to the obligation to pay maintenance as a debt sui generis, a special
kind of obligation and an obligation
which is not discharged or
reduced by set off. It was pointed out that the right to receive
maintenance cannot be ceded or alienated
and the obligation to pay
maintenance cannot be assigned or delegated. The court remarked that
an obligation to pay maintenance
has a character distinctly personal
to the individual to whom it attaches which tells against its
transmission to the estate of
anybody who dies bearing it. It is
usually payable from the income of that individual and the rate of
payment is normally in relation
to his income potential. The court
points out that the income of most people stops when they die.
[19] To the
aforesaid can be added the fact that an obligation to pay
maintenance, even if contained in a settlement agreement,
can be
altered by an order of court and is subject to increase or decrease.
The obligation to pay maintenance can form the subject
of an
application for contempt of court. Although the performance of the
obligation can be arranged with a third party, the obligation
remains
personal to the person liable therefore.
[20] It would
obviously be a one sided view if a clause such as the present should
be viewed from the viewpoint of another woman
(as in Colly’s
case). Concededly, it would have been easy to insert a clause to the
effect that the obligation terminates
at the deceased’s death.
It however would have been just as easy to insert an explicit clause
binding the estate,
[21] The reality is
that, a husband defending a claim for maintenance usually does it
either on the basis of denial of an entitlement
to maintenance
post-divorce at all or as to the amount thereof. The duration thereof
usually only comes into play when the husband
or person liable to pay
maintenance disputes the entitlement for longer than a certain period
(the so called rehabilitative maintenance.).
[22] In my view it
is inconceivable that a party who claims maintenance, would expect
more than what she would have received if
the matter was undefended,
when it was defended and agreement reached. It would be just as
inconceivable that a husband who defends
the matter and then agrees
to pay maintenance would be worse off than one who doesn’t
defend the matter. One would expect
that a woman who wants to obtain
maintenance for a longer period than she would have obtained in an
uncontested divorce, would
explicitly stipulate to that extent and
the same goes for a husband who defends a matter and intends to
maintain his former wife
for a longer period than she would have
received if he did not defend the matter.
[23] What is more,
in the instant matter the parties agreed that the amount of
maintenance would be adjusted in accordance with
any adjustment to
the pension of the husband and in the same relative percentage. That
serves as a further indication that the
parties had in mind that the
maintenance would be payable during the lifetime of the husband for
as long as he receives a pension.
That would obviously come to an end
at his death.
[24]
In my view it is also of relevance that the decisions in the
Coiiy
,
Owens
and
Hughes
matters
were decided at a time when the general perception of the community
was that the traditional role of women are to stay at
home, have and
raise children and see to the household. The perception was that it
was the husband that, in general, had to earn
an income for the
household, the husband being the traditional breadwinner. That is
obviously not the case in modern times anymore.
Women are regarded in
all respects as equal to men and rightly so. The intention of the
parties should therefore be viewed against
the modern view and
background.
[25] In view of the
aforesaid I am convinced that, in general, an agreement to pay
maintenance until the death or remarriage of
the receiving partner
terminates at the death of the paying partner, unless there are
sufficient indications or express stipulations
to the contrary.
Executors
fees:
[26] As far as the
complaint about the executors fees is concerned, it is based on the
fact that the first Respondent did not invest
the cash assets in an
interest bearing account and secondly that the first Respondent made
an advance payment towards the Second
Respondent as to her claim for
maintenance.
[27] As far as the
last mentioned advance is concerned, it appears that the first
Respondent advanced payment to the second Respondent
with the consent
of the third Respondent in terms of section 26(1 )(A) of the Act. The
first Respondent obviously regarded the
second Respondent’s
claim as valid in law in view of the Colly, Owens and Hughes
decisions. That appears to me to be bona
fide and not an indication
of dereliction of duties.
[28] As far as the
investment of moneys are concerned, section 28(1 )(a) requires an
executor to open a cheque account in which
to deposit all cash
moneys. That is obligatory. In terms of subsections (b) and (c) he is
allowed to invest moneys in a savings
account. That however does not
create a legal obligation. The primary obligation of an executor is
to collect, retain and distribute
the assets in an estate. His
primary function in not to make a profit in the interest of the
estate. Of course, if large amounts
of money is involved, it would be
prudent to invest such money in an interest bearing account. In the
present matter, the first
Respondent gives a reasonable explanation
for the way he dealt with the available cash in the estate and shows
that, if he invested
earlier, it would only make a difference of
about R9000.00 in interest.
[29] In the present
circumstances, I am not convinced that the first Respondents neglect
is of such a nature as to disentitle him
to his fees.
Costs:
[30] As far as costs
are concerned it is true that the Applicant succeeds with the main
leg of the application. However the Applicant’s
reliance on
Kruger v Goss and Hodges v Coubrough N.O. (supra) was misplaced. Both
of these decisions explicitly deals with maintenance
orders made by
the court in terms of section 7(2) of the Act and explicitly
differentiates that from a maintenance order in terms
of a settlement
agreement.
[31] The opposition
to the application was based on the law as found in the Colly, Owens
and Hughes decisions. The opposition was
therefore based on existing
law and in the circumstances reasonable.
[32] In view of the
aforesaid I am of opinion that the only appropriate order would be
that the costs be borne by the estate.
Order:
[33] In conclusion I
am of the view that the following orders should be granted;
1. The application
for condonation is granted.
2. The third
Respondent’s decision in refusing the applicants objection to
the admission of second Respondent’s claim
is reviewed and set
aside.
3. It is declared
that second Respondent’s maintenance claim against the estate
of late UP Els, masters reference nr 983/2011,
is unenforceable
against the estate and the first Respondent is ordered to amend the
liquidation and distribution account accordingly.
4. The relieve
claimed in par 2.2 of the notice of motion is dismissed.
5. The costs of the
application including the opposition thereto shall be borne by the
estate.
A. F. JORDAAN, J
B.C. MOCUM1E, AJP
I concur.
C. VAN ZYL, J
On behalf of the
applicant: Adv. P.J.L. Venter
instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the
second respondent: Adv. P. J. T. de Wet
Instructed by
Symingtong & De
Kok
BLOEMFONTEIN