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[2013] ZANCHC 24
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Troger NO and Another v Hunt and Others (2033/2011) [2013] ZANCHC 24 (22 February 2013)
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THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT, KIMBERLEY)
Case No: 2033/2011
Heard on: 06/11/2012
Delivered on: 22/02/2013
In the matter between:
CHRISTINE ELAINE TROGER NO
.....................................
1ST
APPLICANT
ALISA KAYE COZZENS NO
................................................
2ND
APPLICANT
and
SYDNEY REGINALD HUNT
.............................................
1ST
RESPONDENT
MARK HUGH HUNT
.........................................................
2ND
RESPONDENT
JEFFREY EDWARD HUNT
..............................................
3RD
RESPONDENT
THE MASTER OF THE NORTHERN CAPE
HIGH COURT KIMBERLEY
...........................................
4TH
RESPONDENT
THE REGISTRAR OF DEEDS, KIMBERLEY
...............
5TH
RESPONDENT
THE REGISTRAR OF DEEDS, BLOEMFONTEIN
......
6TH
RESPONDENT
JUDGMENT
MAMOSEBO AJ
:
[1]
The first applicant, Christine Elaine Troger
(Troger), and the second applicant, Alisa Kay Cozzens (Cozzens), seek
relief substantially
in the following terms:
1.1. That a declaratory order be issued declaring that
the
fideicommissum
created by the deceased, Reginald Hunt, in
favour of the first and second respondents in respect of the
immovable property set
out in the notice of motion be declared
pro
non scripto
.
1.2. That the properties set out in prayers 1.1 and 1.11
(specified in paragraph 6 below) be declared to fall within the
deceased
estate of Kathryn Hunt, the testator’s window;
1.3. That the fifth respondent (the Registrar of Deeds,
Kimberley) be directed to effect the necessary changes in respect of
the
immovable properties in the Deeds Registry Office of Kimberley;
1.4. That the sixth respondent (the Registrar of Deeds,
Bloemfontein) be directed to effect the necessary changes in respect
of
the properties listed in the Deeds Registry Office in
Bloemfontein;
1.5. That the costs of the application be costs in the
administration of the estate of Kathryn Hunt, unless the application
is opposed,
in which event the parties opposing the application shall
be ordered to pay the costs of this application.
[2] The deceased (the testator) is Reginald Hunt. He
passed away on 16 June 1998. He was married Out of Community of
Property to
Kathryn Hunt, who is mentioned in para 1.2 (above). Prior
to his marriage to Kathryn Hunt, the testator had three sons from a
previous
marriage. The sons are Sydney Reginald Hunt (the first
respondent), Mark Hugh Hunt (the second respondent) and Bruce Hunt,
who
was disinherited and does not feature in these proceedings.
[3] On the other hand Kathryn Hunt had six children from
her previous marriage. The first and second appellants are two of
these
children;they have also been appointed by the Master of the
High Court executrixes of the estate of the late Kathryn Hunt, their
mother.
[4] The testator (Reginald Hunt) left a last will and
testament dated 17 March 1998, the validity of which is now in
dispute for
reasons that will follow. I cite only the relevant
portions of the will, which read as follows:
“
2. I appoint my wife
KATHRYN ELAINE HUNT and my son MARK HUNT as Executors and
Administrators of my Will and failing any one of
them the remainder
of them, thereby granting unto them all such power and authority as
may be allowed in law especially that of
assumption -----.
3.(a) I hereby bequeath my estate,
movable and immovable of every description and wherever situate as
follows:
(i) The property on which my dwelling house is
situate being certain pieces of perpetual quitrent land being Portion
3, a portion
of portion “Sydneys Hope” of the farm HV 17,
situate in the division of Barkly West; measuring Five(5) morgen.On
the
death of my wife this property as well as the furniture,
paintings and carpets in the house on the property shall go to one of
my sons SYDNEY REGINALD HUNT or MARK HUGH HUNT to be nominated or
appointed in the Will of my wife in her absolute discretion. Should
my wife make no nomination or appointment this property shall go to
my son MARK HUGH HUNT.
(ii) All the rest of my immovable property with the
exception of the farm RIETPUT.
On the death of my wife this property shall go to my
sons SYDNEY REGINALD HUNT and MARK HUGH HUNT in equal shares. On
their respective
deaths their shares of the property shall go to
GEOFFREY EDWARD HUNT the son of my son SYDNEY REGINALD HUNT.
(iii) All my members interest in the Close
Corporation REG HUNT STUD CORPORATION CC.
On the death of my wife the members interest shall go
to my sons SYDNEY REGINALD HUNT and MARK HUGH HUNT in equal shares.
My wife
shall not be entitled to sell the immovable property and
water rights registered in the name of the Corporation and the
Corporatio[n]’s
cattle shall only be sold in the ordinary
course of business.
My sons SYDNEY REGINALD HUNT and MARK HUGH HUNT shall
have the right of habitation in respect of the houses they occupy on
the Corporations
immovable property---.
(ix) All my furniture, curtains, linen, blankets,
cutlery, ornaments, crockery, kitchen utensils, stoves, refrigerators
and other
assets contained in my dwelling house which are normally
used in the dwelling house.
My wife shall lease the water rights on the immovable
properties including the farm registered in the name of REG HUNT STUD
CORPORATION
CC with the exception of 8(eight) hectares to my sons
SYDNEY REGINANLD HUNT AND MARK HUGH HUNT, jointly, during her
lifetime, for
R500,00 (FIVE HUNDRED RAND) per allocated water
hectare, per annum. My sons shall also pay for the water rights on
the aforementioned
8(Eight) hectares. My sons SYDNEY REGINALD HUNT
and MARK HUGH HUNT shall also have the right to the irrigation land
in respect
of which they pay the water rights.
My wife shall also lease the grazing land, on the
immovable properties, to my son SYDNEY REGINANLD HUNT and MARK HUGH
HUNT, jointly,
during her lifetime, for 80% (Eighty per cent) of the
ruling price with a minimum of R25,00 (TWENTY FIVE RAND) per hectare.
The
grazing land on Sydney’s Hope and Karee Kloof shall be
excluded herefrom if my wife wishes to use it for her own livestock.
The Kraals and feeding facilities on the immovable properties will be
used jointly, by my wife and sons SYDNEY REGINALD HUNT and
MARK HUGH
HUNT. All rentals shall be paid quarterly in advance and if the
rentals are not paid on due dates my wife shall have
the right in her
discretion, to cancel the leases. My sons shall also rear my wife’s
bull calves from the herds referred
to in items 3(a)(v) and (vi) free
of charge. My sons SYDNEY REGINALD HUNT and MARK HUGH HUNT, jointly,
shall also supply water
for my dwelling house and livestock on
Sydney’s Hope and Karee Kloof free of charge.
My sons SYDNEY REGINALD HUNT and MARK HUGH HUNT shall
not have the right to sublet any immovable property during the
lifetime of
my wife---.
(e) The rest and residue of my estate movable and
immovable wheresoever situate I bequeath to my sons SYDNEY REGINANLD
HUNT and
MARK HUGH HUNT, in equal shares.”
[5] Geoffrey Edward Hunt, who is mentioned in clause
(ii) of the quoted Will, is the third respondent in these proceedings
whom
the testator describes as “
the son of my son Sydney
Reginald Hunt.”
The latter is the first respondent. Nothing
turns on the alternate spelling of the name “Jeffrey” in
the citation in
this application.
[6] It is common cause that the eleven immovable
properties referred to in para 1.2 and tabulated in this paragraph
are held in
the name of the testator’s widow, Kathryn Hunt, in
terms of Deed of Transfer T36/2000. In other words the applicants and
their mother did not dispute, through any legal proceedings, that the
testator’s Will was invalid from the time of his death
in June
1998 until the properties were transferred into Kathryn Hunt’s
name in 2000 (Deed of Transfer T36/2000), and thereafter
apparently
until 29 September 2005 when its validity was attacked in the manner
set out in paras8 and 9 below. The properties in
dispute are the
following:
6.1. The remainder of Portion 2 Wonderfontein of the
Farm WatervalNo. 14 District, Kimberley, Northern Cape Province in
the extent
of 771,4570 (Seven Hundred and Seventy-One, Four Five
Seven Zero) hectares;
6.2. Portion 5 Annex Wonderfontein of the Farm Waterval
No. 14, District Kimberley, Northern Cape Province, in the extent of
128,
4798 (One Hundred and Twenty Eight, Four Seven Nine Eight)
hectares;
6.3. Portion 11 (a Portion of Portion 1) of the Farm
Witpan No. 13, District Kimberley, Northern Cape Province, in the
extent of
1454, 8444 (One Thousand Four Hundred and Fifty –Four,
Eight Four Four Four) hectares;
6.4. The remainder of Portion 1
Lynfontein of Farm Witpan No.13, District Kimberley, Northern Cape
Province, in the extent of 1514,
7516 (One Thousand Five Hundred and
Fourteen, Seven Five One Six) hectares;
6.5. Portion 8 of Rivierzicht of the
Farm Doornfontein No.12, District Kimberley, Northern Cape Province,
in the extent of 733,4112
(Seven Hundred and Thirty-Three, Four One
One Two) hectares;
6.6. Portion 3 (a Portion of Portion 2) of the Farm
Karee Kloof No. 312, District Barkley West, Northern Cape Province,
in the extent
of 4, 2827 (Four, Two Eight Two Seven) hectares;
6.7. The remainder of the Farm Karee Kloof No.312,
District Barkly West, Northern Cape Province, in the extent of
789,7249 (Seven
Hundred and Eighty – Nine, Seven Two Four Nine)
hectares;
6.8. The Farm Headstream No.313, District Barkly West,
Northern Cape Province, in the extent of 1437, 4020 (One Thousand
Four Hundred
and Thirty- Seven, Four Zero Two Zero) hectares;
6.9. The remainder of Portion 2
Sydney’s Hope of the Farm KareeKloof No.312, District Barkly
West, Northern Cape Province,
in the extent of 876, 4578 (Eight
Hundred and Seventy Six, Four Five Seven Eight) hectares;
6.10. The remainder of the Farm
Rietfontein 1628, District Boshoff, Free State Province, in the
extent of 553, 5432 (Five Hundred
and Fifty Three, Five Four Three
Two) hectares;
6.11. Portion 1 (Erasmusdale) of the Farm Rietfontein
1628, District Boshoff, Free State Province, in the extent of 924,
1111 (Nine
Hundred and Twenty-Four, One OneOne One) hectares.
[7] Shortly after the death of the testator on 16 June
1998 Kathryn Hunt left South Africa to reside with her daughters, the
applicants,
who are domiciled in the United States of America, where
she died on 16 April 2007.
[8] There is a dispute on whether the letter, annexure
“PH4” to the applicant’s papers, reached the Master
of
this High Court. The applicants claim that their mother (Kathryn
Hunt) wrote the letter and forwarded it to that office. It is
unnecessary, in my view, to determine the authenticity and
destination of “PH4”. What matters is that the applicants
rely on its contents as a springboard to launch this application. It
carries the date of 29 September 2005 (seven years after the
testator’s death and about 18 months before Kathryn Hunt’s
death on 16 April 2007).
[9] I quote the most relevant part of “
PH4”
:
“
As Reg’s health
started to wane, his sons frequently pushed for change in his Will to
benefit themselves. Many Wills were
written during his illness, which
varied dramatically depending on the current state of Reg’s
mind and emotions. The small
town attorney who drafted the final
Wills was himself extremely ill at the time and shortly after Reg’s
death he died of
cancer.
Because
of these aforementioned factors, the last Will that was produced
priorto Reg tragically going into a coma, was ambiguous
convoluted
and difficult for all to interpret. It was also a significant
departure from previous Wills he had written, leaving
the bulk of the
estate free and clear to me.
Only now, after having several years to grieve,
reflect and recuperate from this tragedy and dramatic change in my
life do I realize
how emotionally and physically exhausted I was when
Reg passed away. I was very confused, alone and mentally incapable of
making
the decisions that were forced upon me. As an older widow left
alone on a farm during a time of political turmoil in South Africa
I
desperately needed the love support and nurturing of my children and
siblings in a safe environment. As my family could not afford
to
travel to, and spend time with me in South Africa I left quickly
following Reg’s death to join them for a period. I had
no one
to trust and look to for counselling regarding the settlement of the
estate, but my step-sons, who I hoped to be trustworthy.
My children
and siblings in America encouraged me to employ an attorney, but in
my emotional state, I could not deal with any of
the affairs.
Looking back now I know that I was not myself during
this time. I had a temporary breakdown that disabled my usually
strong ability
to be discerning and businesslike. I just required
rest and solace to recuperate and foolishly relinquished the powers
and authorities
that I had to my step-sons. I was then forced into
business decisions regarding issues that I could not perceive the
implications
of at the time. I am sorely disappointed in my
step-sons. I did not anticipate, in my fatigued and clouded state,
the deceit that
would ensue. They did not look after my best
interest, although Reg expected them to care for me as their mother.
I feel robbed,
abused and treated in a brazenly arrogant manor [sic].
They have twisted a convoluted Will, by their own admonition through
advice
from many attorneys, without keeping me and my family’s
best interest in mind.
It is my wish that this will
settlement be revisited and interpreted
.”
(My
emphasis).
[10] The executrixes, who are the applicants, are in
this application merely echoing the sentiments purportedly expressed
by their
mother in “PH4” in the concluding paragraph
that: “It is my wish that this will and settlement be revisited
and
interpreted”. They are entitled to ask the Court to do that
even without reference to the letter, “PH4”.
[11] The executrixes contend that upon preparing
theFirst and Final Liquidation and Distribution Account pertaining to
the estate
of the late Kathryn Hunt it became apparent to them that
the immovable properties should have been registered and transferred
into
the name of Kathryn Hunt “without any encumbrances”
as has now happened. In short, no
fideicommissum
was created
by the testator.
[12] The argument by AdvPuckrim SC, for the applicants,
goes along these lines:
(a) On an interpretation of clauses (i) and (ii) of the
Will, they appear to consist of two separate paragraphs. On a plain
interpretation
of the two paragraphs it appears that the rest of the
testator’s immovable property (but importantly with the
exception of
the farm Rietput) was bequeathed to “my wife”
i.e. Kathryn Hunt. The proviso contained in this clause appears in
the
second paragraph and is ambiguous. On the one hand, the argument
proceeds, it may be interpreted as meaning that on the death of
Kathryn Hunt, the farm Rietput should go to the testator’s
sons, Sydney Reginald Hunt and Mark Hugh Hunt, in equal shares,
subject to the further proviso that on their respective deaths their
share of the property should go to Geoffrey Edward Hunt, the
son of
Sydney Reginald Hunt.
(b) On the other hand, Mr Puckrin contends, the said
clause may also be interpreted to mean that on the death of Kathryn
Hunt the
immovable property, except the farm Rietput, should go to
the testator’s sons, Sydney Reginald Hunt and Mark Hugh Hunt in
equal shares.
(c) In counsel’s view, seen in context and with
particular reference to clauses 3(b) and (c) the Will
thereforeprovides that
both Sydney Reginald Hunt and Mark Hugh Hunt
would inherit one half share of the farm Rietput, which on their
respective deaths
should go to the son of Sydney Reginald Hunt being
Geoffrey Edward Hunt, the third respondent.
(d) The provisions of clause 3(a)(ix) seem to suggest
that the remaining property was transferred free of any
fideicommissum
, counsel seek to persuade the Court.
[13] The first, second and third respondents (the sons
and grandson respectively, of the testator) lodged an objection in
terms
of
s35(1)
of The
Administration of Estates Act 65 of 1965
against the L and D Account dated 03 September 2009 relating to the
estate of Kathryn Hunt. The essence of their objection was
that it
was evident from the Will of the testator (Reginald Hunt) that the
properties now in dispute were left to his widow, Kathryn
Hunt,
subject to a
fideicommissum
in favour of his two sons, the
first and second respondents. What should be borne in mind, and is of
particular relevance is that
if the
fedeicommissum
stipulation
or element is declared
pro non scripto
all the immovable
properties in question will devolve upon the estate of Kathryn Hunt
free of any encumbrances. Of significance
is that under the Will of
Kathryn Hunt, executed on 12 October 2004, the only beneficiaries are
the two applicants(Ms Troger and
Ms Cozzens) and the Kathryn Elaine
Hunt Living Trust. Nothing is left to Kathryn Hunt’s four other
children who were still
alive or to the testator’s (Reginald
Hunt’s) two sons and grandson whom he wished to benefit under
his Will.
[14] Mr Puckrin has made the following concession,
though, in his written Heads of Arguments which was not retracted:
“
It is important to bear in
mind that it is not disputed that the first and second respondents
were to inherit the immovable properties
in equal shares.”
[15] The issues which are to be determined are the
following:
(a) What was the intention of
ReginaldHunt (the testator) inhis Last Will and Testament? Was a
fideicommissum
created?
(b) As contended for by the
applicants, will inheriting the immovable property by the first and
second respondents in equal undivided
shares contravene the
provisions of the Subdivision of Agricultural Land Act, 70 of 1970,
resulting in the bequest being null and
void?
(c) Should the Court declare the
fideicommissum
in the Will
pro non
scripto?
[16] The rules applicable to the interpretation of Wills
have been the subject of numerous decisions. I refer to only a few of
these
cases:
16.1. In
Robertson v Robertson’s Executors
1914 AD 503
at 507 Innes ACJ expressed himself as follows:
“
Now the golden rule for the
interpretation of testaments is to ascertain the wishes of the
testator from the language used. And
when these wishes are
ascertained, the Court is bound to give effect to them, unless we are
prevented by some rule or law from
doing so. In the present instance
the testator clearly and plainly directs that his wife shall have no
control over his estate
during her life; but she comes into a court
of law and demands such control. To grant her request would be to
vary the express
provisions of the will, and it lies upon her to
advance some compelling reason for what, upon the face of it, would
be an improper
order.”
16.2 In
Cuming v Cuming and others
1945 AD
201
at 213
Davis AJA
cited with approval the following
dictim
by
Blackburn J
in
Allgood v Blake
(1873)LR8 Exh
160, 163 in which the requirements for the interpretation of a will
were stated:
"The general rule is that, in construing a will,
the Court is entitled to put itself in the position of the testator,
and to
consider all material facts and circumstances known to the
testator with reference to which he is to be taken to have used the
words in the will, and then to declare what is the intention
evidenced by the words used with reference to those facts and
circumstances
which were (or ought to have been) in the mind of the
testator when he used those words."
16.3 The following passage appears from RP Pace and WM
Van der Westhuizen on Wills and Trusts, Issue 16 at 46(3) para 23.2:
If one is to condense all the salient requirements for
the interpretation of a will into one paragraph the summary of
Blackburn
J in the case of
Allgood v Blake
(1873)LR
8
Exch 160
163 (quoted with approval in
Cuming v Cuming and
others
1945 AD 201
could probably not be improved upon:
“
But the court is to
construe the will as made by the testator, not to make a will for
him; and therefore it is bound to execute
his expressed intention,
even if there is great reason to believe that he has, by blunder,
expressed what he did not mean. And
the general rule, we believe, is
undisputed, that, in trying to get at the intention of the testator,
we are to take the whole
of the will, construe it altogether, and
give the words their natural meaning (or, if they have acquired a
technical sense, their
technical meaning) unless, when applied to the
subject matter which the testator presumably had in his mind, they
produce an inconsistency
with other parts of the will, or an
absurdity or inconvenience so great as to convince the court that the
words could not have
been used in their proper signification, and to
justify the court in putting on them some other signification which,
though less
proper, is one which the court thinks the words will
bear.”
[17] On the question of the establishment of a
fideicommissum
the Courts had this to say:
18.1 In
Gordon’s Bay Estates v Smuts and
Others
1923 AD 160
at 165
Juta JA
states:
“
The first question which
falls to be determined is whether or not the will created a
fideicommissum in respect of the farm Gustrouw;
for it is only if
that is answered in the affirmative that the further question of
accrual (jus accrescendi) need be considered.
The main rule of construction is to ascertain the
intention of the testatrix. To this, all other canons of construction
must give
way, as Voet sums up at the end of his long and elaborate
book on fideicommissa: indeed, he says that the general rules are
often
fallacious. Even where a testator uses the word
"fideicommissum," that is not conclusive in the face of
other clear expressions,
showing a contrary intention (DE VILLIERS,
C.J., in van Breda v The Master, 7 J. 363). So where a usufruct is
bequeathed, with
the addition of a prohibition on alienation, the
general rule, that in such a case the full ownership is deemed to
have been bequeathed
(Voet, 7.1.10 v. d. Keessell Th. 372, inter
alios), must give way to the intention to be gathered from the will
as a whole (Samaradiwakara
v de Saram, D.C., reported
1911 AD 465).
That being so, a decision upon one will is not of much assistance in
construing another will, the language in both not being the
same.”
At 166 Juta JA continues:
“
The effect of a
fideicommissum
,
as a general rule, is to vest the ownership of the property in the
beneficiary at whose death the property is to devolve on the
third
person. Do the words in this will show any intention of vesting the
ownership in Carl and his wife? The well-established
rule in the
Roman-Dutch law is that, in case of doubt, the construction should be
against a
fideicommissum
.
There is no need to invoke that rule here, because there are
expressions in the Will which clearly show that there was no
intention
of vesting the ownership in Carl and his wife, and,
therefore, no intention of creating a
fideicommissum
.”
18.2 In
Brits v Hopkinson
1923 AD 492
at
495
Wessels JA
decided:
“
Before the Court can
construe a testamentary disposition to be a fideicommissum it must be
satisfied beyond a reasonable doubt that
the testator intended to
burden the bequest with a fideicommissum.
To impose a fideicommissum for the benefit of
succeeding generations, the words employed must not be vague and
indefinite, but must
be sufficiently clear to show an intention on
the part of the testators that the heirs are not free to deal with
the property either
during their lifetime or after their death, but
that they must allow the property to go to their heirs. (Van Heerden
v Van Heerden's
Executors, 1909, T.S at p. 291).”
[18] With these principles in mind I deal with the crux
of the clauses in the testator’s Will and the submission by Adv
De
Bruin SC, for the first, second and third respondents (the
testator’s sons and grandson, respectively), which I find
persuasive.
[19] The testator in a straightforward manner devised by
will as follows in the introductory part.
“
I hereby bequeath my estate,
movable and immovable of every description and wherever situate as
follows:
(a) To my wife Kathryn Elaine Hunt:”
What is noteworthy is that there is no interruption or
intervention between the testator’s express intention to give
or bequeath
his estate and to whom he does so.
[20] The bequest in clause 3(a)(i) is to the testator’s
wife, Kathryn Hunt. That immovable property is meticulously
described,
as in a Deeds Register. It is the property on which the
dwelling house is situated, a portion of Sydneys Hope, he states. In
the
same clause (a)(i) the testator says that: “On the death of
my wife this property ---- shall go to one of my sons Sydney Reginald
Hunt or Mark Hugh Hunt.” Kathryn Hunt had to stipulate in her
Will who of the two must inherit the farm, in default of which
Mark
Hugh Hunt becomes the beneficiary. I cannot see how “this
property” can give rise to any speculation.
[21] In clause 3(a)(ii) the “All the rest of my
immovable property with the exception of the farm Rietput” is
the title
of the subject-matter which the testator dealt with next.
“All the rest of my immovable property” means that leave
out “a portion of Sydneys Hope” because I have already
dealt with it in clause (a)(i) and as far as Rietput is concerned
I
deal with it later in clause 3(b) and 3(c). Clause 3(a)(ii) therefore
deals with nine (9) of the eleven (11) properties which
I tabulated
in paragraph 6
supra.
[22] In summary therefore what the testator devises in
clause 3(a)(ii) in respect of the nine immovable properties in his
own words:
“
On the death of my wife
this property as well as the furniture, paintings and carpets in the
house on the property shall go to one
of my sons SYDNEY REGINALD HUNT
or MARK HUGH HUNT to be nominated or appointed in the Will of my wife
in her absolute discretion.
Should my wife make no nomination or
appointment this property shall go to my son MARK HUGH HUNT.
All the rest of my immovable property with the
exception of the farm RIETPUT.
On the death of my wife this property shall go to my
sons SYDNEY REGINALD HUNT and MARK HUGH HUNT in equal shares. On
their respective
deaths their shares of the property shall go to
GEOFFRY EDWARD HUNT the son of my son SYDNEY REGINALD HUNT.”
[23] Concerning the farm Rietput the testator states at
3(b) and 3(c):
24.1 “To my son Sydney Reginald Hunt:
(i) One half share of the farm Rietput.
On his death it shall go to his son Geoffrey Edward
Hunt.”
24.2 “To my son Mark Hugh Hunt:
(v) One half share of the farm Rietput. On his death it
shall go to Geoffrey Edward Hunt, son of my son Sydney Reginald
Hunt.”
[24] I therefore find, and must agree with Mr De Bruin,
that the rest of the testator’s immovable properties (excluding
only
the two immovable properties that I have distinguished)
arebequeathed to Kathryn Hunt, subject to a
fedeicommissum
in
favour of Sydney Reginald Hunt and Mark Hugh Hunt and on their
respective deaths the properties shall devolve upon Geoffrey
Edward
Hunt. This is, indeed, a classical
fideicommissum
that was
established by virtue of the stipulation in clause 3(a)(ii) of the
Will.
[25] The applicants contend that at all material times
the immovable properties in question were and still remain
agricultural land
and that s3 of the
Subdivision ofAgricultural
Land Act, 70 of 1970
(the SAL Act) provides specifically that
there is a prohibition against certain actions relating to the
subdivision of agricultural
land. I now examine the relevant
provisions of the SAL Act – which are sections 2,3,4 and 5.
[26] It makes sense to begin with s3 of the
SAL Act
.
It states:
26.1 “
3.
Prohibition of certain
actions regarding agricultural land
.—Subject to the
provisions of section 2—
(a) agricultural land shall not be subdivided;
(b) no undivided share in agricultural land not
already held by any person, shall vest in any person;
(c) no part of any undivided share in agricultural
land shall vest in any person, if such part is not already held by
any person;
(e)(i) no portion of agricultural land, whether
surveyed or not, and whether there is any building thereon or not,
shall be sold
or advertised for sale, except for the purposes of a
mine as defined in section 1 of the Mines and Works Act, 1956 (Act
No. 27
of 1956); and
(g) no public notice to the effect that a scheme
relating to agricultural land or any portion thereof has been
prepared or submitted
under the ordinance in question, shall be
given,
unless the Minister has consented in writing.”
26.2. Section 2 provides that:
“
2. Actions which are
excluded from application of Act.—The provisions of this Act
shall not apply in respect of—
(a)(i) any subdivision of land for the purpose of
transferring a portion thereof to the State or a statutory body;
(ii) the transfer of an undivided share in land to
the State or a statutory body;
(iii) the sale or grant of any right to any portion
of agricultural land to the State or a statutory body;
[Para. (a) substituted by s. 2 (a) of Act No. 55 of
1972 and by s. 2 of Act No. 18 of 1977 and amended by s. 1 of Act No.
49 of
1996.]
Wording of Sections
any subdivision of, or the passing of an undivided
share in, any land in accordance with a testamentary disposition or
intestate
succession, if the testator died before the commencement
of this Act;
(c) the passing of an undivided share in any land in
accordance with a contract entered into prior to the commencement of
this Act;”
26.3. Section 4 reads:
“
4. Application for consent
of Minister, and imposition, enforcement or withdrawal of conditions
by him.—(1) (a) Any application
for the consent of the Minister
for the purposes of section 3 shall—
in the case where any act referred to in paragraphs
(a) to (e) of that section is contemplated, be made by the owner of
the land
concerned;
(2) The Minister may in his discretion refuse or—
(a) on such conditions, including conditions as to
the purpose for or manner in which the land in question may be used,
as he deems
fit, grant any such application;”
26.4. Section 5 thereof stipulates:
“
5. Succession.—(1) If
the Minister does not in terms of section 4 consent to the
subdivision of any particular agricultural
land in accordance with
any testamentary disposition or intestate succession or to the
vesting of any undivided share in such land
in accordance therewith,
and no agreement is reached as to a subdivision or vesting in respect
of which the Minister grants his
consent in terms of the said section
4, the executor of the estate concerned shall realize the land or
undivided share concerned,
as the case may be, and dispose of the
nett proceeds thereof in accordance with the said testamentary
disposition or intestate
succession, as the case may be.”
[27] It is helpful as a starting point to revisit the
common law on when ownership passes to the acquirer of land. In
Frye’s (Pty) Ltd v Ries
1957(3) SA 575(A) at
582A-C
Hoexter JA
held:
“
As far as the effect of
registration is concerned, there is no doubt that the ownership of a
real right is adequately protected
by its registration in the Deeds
Office. Indeed the system of land registration was evolved for the
very purpose of ensuring that
there should not be any doubt as to the
ownership of the persons in whose names real rights are registered.
Theoretically no doubt
the act of registration is regarded as notice
to all the world of the ownership of the real right which is
registered. That merely
means that the person in whose name a real
right is registered can prove his ownership by producing the
registered deed. Generally
speaking, no person can successfully
attack the right of ownership duly and properly registered in the
Deeds Office. If the registered
owner asserts his right of ownership
against a particular person he is entitled to do so, not because that
person is deemed to
know that he is the owner, but because he is in
fact the owner by virtue of the registration of his right of
ownership.”
[28] In
Eksteen& Another v Pienaar&
Another
1969(1) SA 17(O) at 20A-D the Court stated:
“
Although the dominium is
still registered in the name of the deceased fiduciary with the
result that it is her executor who has
to pass transfer to the
fideicommissaries, the ownership in the property is acquired by the
latter at the death of the deceased.
The general rule is of course
that ownership of land passes at the moment that delivery of the
immovable is given to the transferee
and that occurs at the moment
his name is entered in the register as the new dominus of the
property (per WESSELS, J.A., in Breytenbach
v van Wijk,
1923 AD 541
at p. B 547). But this general rule is subject to certain exceptions,
one of which relates to succession by a fideicommissary on
the death
of the fiduciary. (Anstruther and Others v Chiappini's Trustees,
3
Searle 91
at p. 98; Steyn on Wills, 2nd ed., p. 137, cf. van der
Keessel Theses Selecta 202; Voet, 41.1.41 and 18.1.15 ad fin.). Other
exceptions
are when ownership is acquired by accession, prescription,
statute, marriage in community and a sequestration order. In
Rosenberg
v Dry's Executors and Others,
1911 AD 679
at p. 689, Lord
DE VILLIERS said that:
'For the sake of completeness of his records the
Registrar of Deeds properly requires that a wife, who after her
husband's death
wishes to deal with her half-share in any land, shall
first receive transfer, but the practice cannot alter the doctrine of
our
law that, even without registration, the dominium passes by
reason of the community.'”
[29] In
Ex Parte
Menzies et
Uxor
1993(3) SA 799(C) at 805G-H King J stated:
“
It is now accepted that a
fideicommissary acquires ownership of immovable property upon the
fulfilment of the fideicommissary condition
without the need for
registration. (Carey Miller (op cit at 170); Eksteen and Another v
Pienaar and Another1969 (1) SA 17 (O) at
19D-20D; Corbett, Hahlo,
Hofmeyr and Kahn The Law of Succession in South Africa at 329
especially n 542. As to the registration
practice where a
fideicommissum is concerned, see Jones Conveyancing in South Africa
4th ed at 161.)”
[30] In
Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd
and Another
2008(1) SA 654(SCA) the Supreme Court of Appeal
had to determine the validity of a sale of sub-divided agricultural
land where there
was no prior Ministerial consent for such
subdivision. The SCA held that the land was not agricultural land and
that the agreement
was valid and binding. This decision caused
uncertainty and was taken on appeal. The Constitutional Court in
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
[2008] ZACC 12
;
2009 (1) SA 337
(CC) in
reversing the SCA decision held:
“
[84] ---The questions are
rather whether an interpretation which, as indicated in para [81]
above, accords a role to national government
in the administration of
'agricultural land' through the provisions of the Agricultural Land
Act, is one which would promote the
spirit, purport and objects of
the Bill of Rights or, if necessary, one which would better promote
those considerations.
[85] In my judgment both of these questions are to be
answered in the affirmative. Whatever powers of administration
municipalities
may have over land such as that in dispute, according
a role to the national government in the administration thereof can
only
serve to advance the cause of the rights invoked by the amici
and the Minister. It cannot be excluded that excessive fragmentation
of 'agricultural land', be it arable E land or grazing land, may
result in an inadequate availability of food, and the Agricultural
Land Act is a valuable tool enabling the State to carry out necessary
controls. As the Minister pointed out, international law
recognises
that the content of the right to food has the twin elements of
availability and accessibility. The first element refers
to a
sufficient supply of food and requires the existence of a national
supply of food to meet the nutritional needs of the population
generally. It also requires the existence of opportunities for
individuals to produce food for their own use. The second element
requires that people be able to acquire the food that is available or
to make use of opportunities to produce food for their own
use. In
respect of both elements there is a measure of overlap with the
State's obligation under s 25(5) of the Constitution to
facilitate
equitable access to 'agricultural land', and with the State's
obligation under s 24 of the Constitution to conserve
the
environment. ”
The Subdivision of the Agricultural land Act further
makes provision for an executor to sell the land or the undivided
share, should
the Ministerial consent not be granted for the
subdivision thereof and for the proceeds of such sale to be divided
according to
the provisions of the Will.
[31] The testator clearly spells out that Kathryn Hunt,
Sydney Reginald Hunt and Mark Hugh Hunt must transfer this property
to the
third Respondent, Geoffrey Hugh Hunt, therefore, all of them
are subject to this
fideicommissum
. This case is
distinguishable from
Geue and Another v Van Der Lith and
Another
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) in that, in Geue, an undivided
portion of agricultural land was sold by the owner without prior
Ministerial consent as required
by section 3(e)(i) of the Subdivision
of Agricultural Land Act 70 of 1970, although the sale was subject to
a suspensive condition
of the ministerial consent being obtained.
There is no question of sale of the agricultural land in this matter.
The testator has
specifically left this immovable property to his
wife, Kathryn Hunt and upon her death, the property is to evolve to
his two sons,
Sydney Reginald Hunt and Mark Hugh Hunt in equal
undivided shares and upon their death, to Geoffrey Edward Hunt.
[32] Applicants argue that the
fideicommissum
is
in contravention of the
Subdivision of the Agricultural Land Act
70 of 1970
therefore unlawful. They contend that this
fideicommissum
is unenforceable and should fall away. This
argument is against the backdrop of a restrictive interpretation.
Counsel relies on
the prohibition in terms of section 3 of the Act
pertaining to the subdivision of agricultural land. It is common
cause that in
a
fideicommissum,
as stated by Joubert
1953
THRHR 244
, the property vests in the fiduciary subject to a
successive right of the
fideicommissary
to the dominion
therein. The rights of alienation of the property of the fiduciary
are therefore limited, as the object of the
fideicommissary
is
to provide for the benefit to be passed on to another beneficiary, in
this specific instance, the third respondent, Geoffrey
Edward Hunt.
[33] It could never have been the intention of the
legislature to deprive beneficiaries of their inheritance purely
based on the
restrictive interpretation of section 3 of the
Subdivision of Agricultural Land Act, 1970. Respondent’s
counsel has correctly
pointed out that the provisions must be read in
its entirety and not piecemeal. The Minister can still be approached
for his consent
and the provisions of section 5 (1) and (2) can be
applied. In
Cussons &Andere v Kroon
2001 (4) SA 833
(SCA) at 838 E-H
Streicher JA
held that section 3(b) of the Act
does not prohibit the registration of a partnership asset in the name
of a partner and, if that
happens, the other partner or partners do
not gain a real right in the property but only a personal right
against the partner in
terms of which she or he is bound to treat the
property as a partnership asset.
[34] I have already referred to the Constitutional
Court’s view in Wary Holdings (supra) that the intention of the
legislature
with the Subdivision of Agricultural Land Act was to
ensure the continued existence of agricultural land and the
Minister’s
control over it irrespective of the establishment of
transitional councils. Clearly, first and second respondents are
farming on
this land and must continue to do so until the property
vests in the third respondent according to the testator’s Will.
I
do not see how their use and enjoyment of such property subject to
the
fideicommissum
can in any way contravene the Act or the
wishes of the testator.
[35] On the question of costs.
Both counsel for
the applicants and the respondents have submitted that the costs
should include costs of two counseland be paid
from the estate of
Kathryn Hunt. I agree.
[36] In the result I make the following order:
The application is dismissed.
The costs of this application, which includes the
employment of two counsel, will be costs in the administration of
the estate
of the late Kathryn Elaine Hunt, failing which, by the
applicants jointly and severally, the one paying the other to be
absolved
.
_________________________________
M C MAMOSEBO
ACTING JUDGE
NORTHERN CAPE DIVISION
For the Applicants:
Adv CE PUCKRIN SC
J HERSHENSOHN
Instructed by: HUGO, MATHEWSON & OOSTHUIZEN INC.
For the Respondents:
Adv JP DE BRUIN SC
Adv PJT DE WET
Instructed by: HAARHOFF’S ATTORNEYS