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[2015] ZAKZDHC 6
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Gounden and Another v Master of the High Court and Others (3698/2014) [2015] ZAKZDHC 6 (18 February 2015)
CIVIL
CASE NO:
3698/2014
DATE:
19
NOVEMBER 2014
Edited
18 February 2015
In
the matter between:
LUTCHMI
GOUNDEN & ANOTHER
…............................................................
APPLICANTS
and
THE
MASTER OF THE HIGH COURT & OTHER
…....................................
RESPONDENTS
JUDGMENT
D
PILLAY J T
his case turns on a principle
of common law concerning vesting, enjoyment or enforcement of
inheritance and the interpretation of
section 15(2)
and (3) of the
Matrimonial Property Act 88 of 1984
. The third and fourth respondents
raise the preliminary procedural objection that the applicants should
have proceeded in terms
of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA) to review the administrative decision of the
Master. That was an
option open to the applicants. They chose to seek
a declarator in terms of section 19(1)(a)(iii) of the Supreme Court
Act 59 of
1959. Concession by counsel for the third and fourth
respondents that the PAJA process is immaterial as all the relevant
information
is before Court enabled the matter being disposed of
substantively.
The
common cause facts are that the first applicant was married to
Gopaulsamy Gounden (the deceased) in community of property. They
had
one child of the marriage, namely, the second applicant. The first
applicant and the deceased separated and lived apart for
about 35
years but they were never divorced. The deceased and Miriam Bibi
Abdul Raman had one child, namely, Mahomed Faraad Gounden,
the first
and second intervening parties. The deceased died intestate. His
estate is now represented by the third and fourth respondents
. All
the parties excluding the first respondent Master are beneficiaries
in the estate of the deceased.
The
first applicant’s sister, Sivalutchmi Somnaidoo died. Her
estate is represented by the second respondent who does not
oppose
this application. The first applicant is one of the intestate
beneficiaries of her estate. The liquidation and distribution
account
in the estate of Somnaidoo has not been finalised. The accounts were
lodged. The applicants and the third and fourth respondents
objected
to them. The Master, ruled in favour of the third and fourth
respondents that:
‘
If
the deceased’s sister, Lutchmi Gounden, is one of the intestate
heirs and she was married in community of property at the
time of the
deceased’s death, then she
and
by virtue of her matrimonial property regime
also
her spouse
(who was then still alive) –
in other words their joint estate are intestate heirs.’
The
first applicant renounced the benefits in the estate of Ms Somnaidoo.
The Master refuses to accept the renunciation without
the consent of
the deceased or his executor.
The
issue for determination is whether the first applicant’s
renunciation without the consent of the deceased or his executor
is
valid. The answer can be sourced from the
Matrimonial Property Act.
Section
15(1) provides:
‘
Subject
to the provisions of subsection (2), (3) and (7), a spouse in a
marriage in community of property may perform any juristic
act with
regard to the joint estate without the consent of the other spouse.’
Subsection
(2) lists a series of transactions that require the written consent
of the other spouse. The nature of these transactions
are such that
they encumber or diminish the joint estate or expose it to the risk
of loss. Subsection (3) requires the consent,
not necessarily in
writing, of the other spouse. Subsection (3)(b)(iii) states:
‘
A
spouse shall not without the consent of the other spouse receive any
money due or accruing to that other spouse or the joint estate
by way
of –
(iii) inheritance,
legacy, donation, bursary or prize left, bequeathed, made or awarded
to the other spouse.’
The
third and fourth respondents and the intervening parties contend that
the inheritance from estate late Somnaidoo was received
or accrued to
the joint estate upon the death of Somnaidoo.
Turning
to the authorities, all acknowledge that inheritance in an intestate
estate vests on the death of the deceased.
[1]
In
De
Leef
the Appellate Division had to decide on the liability of shareholders
for transfer duty arising from the transfer of property to
two trusts
prior to the Master confirming the liquidation and distribution
accounts. The court distinguished between vesting
(dies
cedit)
and
acquisition of an enforceable right
(dies
venit)
.
Dies
cedit
is the right of a shareholder to participate in the distribution of
the company’s surplus assets ‘at some future time’
(the Appellate Division’s emphasis).
Dies
venit
occurs only ‘after’ the Master confirms the liquidation
and distribution account. The Appellate Division relied
on the
administration of estates to bolster its opinion as follows:
‘
Besides,
according to our modern system of administration of deceased estates,
the heir or legatee of an unconditional bequest obtains
a vested
right (
dies
cedit
)
to be entitled to the bequest on the death of the testator (
a
morte testatoris
).
Such a right is transmissible but his claim is enforceable
only
at some future time
when the executor’s liquidation and distribution account has
been confirmed (
dies
venit
).
He then has an enforceable right to claim payment, delivery or
transfer of his bequest (
ius
in personam
ad
rem acquirendam)
.’
[2]
The
Appellate Division cites various authorities to support its opinion.
It also points out that confirmation of the account actually
means
allowing the accounts to lie for inspection without objection.
McLaren
J of this division wrote in
Eyssell &
Another v Barnes N.O & Others
2000
JOL 23413
N that:
‘
The
right of election is conferred upon the persons having the most
direct interest in the election, namely, in this case ... her
intestate heirs.’
The
person having the most direct interest in this matter is the first
applicant. It is not for the executors in any estate to make
such
election. The first applicant acquires on
dies
cedit
a right to claim her inheritance.
It is that right that vests in her on the death of Somnaidoo. It is
not the right to the inheritance
itself. The inheritance would only
vest in her joint estate with the deceased after the accounts have
lain for inspection without
objection. The accounts have not been
approved by the Master. Furthermore, creditors have still to lay
their claims and, until
dies venit
occurs, the first applicant was free to dispose of her inheritance as
she pleased.
Returning
to subsection 3(b)(iii) of the
Matrimonial Property Act, the
express
text is unambiguous. It is only the receipt of an inheritance that
accrues to the joint estate that requires the consent,
informal as it
might be, of the other spouse. The joint estate is not the heir to
Somnaidoo and therefore the consent of the deceased
was not required.
Counsel for the third and fourth respondents requested that one
should read into the text of the
section 3(b)(iii)
words to the
effect that consent of the other spouse should be required to not
only receive but also ‘reject or renounce’
any
inheritance, is a far-reaching intervention that cannot be
entertained in the circumstances of this case. This case clearly
exposes and takes into account why it is necessary to allow the heir
to retain the power of acceptance or rejection of an inheritance.
That is part of our common law and cannot be varied for the
convenience of some parties.
In
this case the parties who seek to share in the estate of Somnaidoo
are the intervening parties who had no relationship to Somnaidoo.
Given the prolonged estrangement between the first applicant and the
deceased it is unconscionable and repugnant to permit the
amendment
suggested by the third and fourth respondents. As the Master has not
approved the liquidation and distribution account,
the inheritance
has not vested or accrued to the joint estate.
Accordingly
the application should be
GRANTED
.
The
order I grant therefore is in terms of paragraphs 1 and 2. Regarding
paragraph 3, the costs shall be borne by the third and
fourth
respondents and the intervening parties jointly and severally, the
one paying the others to be absolved.
D
Pillay J
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- -
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 3698/2014
DATE
: 19 NOVEMBER 2014
LUTCHMI
GOUNDEN & ANOTHER
versus
THE
MASTER OF THE HIGH COURT & OTHERS
BEFORE
THE HONOURABLE MADAM JUSTICE D PILLAY
ON
BEHALF OF APPLICANTS : MR MOGAN
ON
BEHALF OF RESPONDENTS
AND
INTERVENING PARTIES : MR MOGAN
MR
D D NAIDOO
MR
MHLONGO
[1]
Corbett
CJ in
Engineering
& Others Estate Greenberg
1955(3)
SA 361 (A) at 366;
Estate
Smith v Estate Follet
1942 AD 364
;
Commissioner
for Inland Revenue v Estate Crew
1943 AD 656/692
;
Union
Government (Minister of Finance) v Oliver
1916 AD 74
at 90;
Harris
v Assumed Administrator Estate McGregor
1987(3) SA 563 (A) at 575B-E; Wille’s
Principles
of South African Law
9
th
Ed. pp 679 and 703; Corbett, Hofmeyr & Khan
The
Law of Succession in South Africa
2
nd
Ed. Juta 147;
Jubelius
v Griesel N.O.
1988(2) SA 610 (C) at 624-5;
De
Leef Family Trust & Another v Commissioner for Inland Revenue
1993(3) SA 345
[2]
De
Leef Family Trust
at 358 D-E.