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[2012] ZAGPPHC 179
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Heukelman and Others v Heukelman NO And Another (6751/10) [2012] ZAGPPHC 179 (20 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA,
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 6751/10
DATE:20/08/2012
In
the matter between:
HERMAN
HEUKELMAN
....................................................................................
First
Plaintiff
JAN
HEUKELMAN
.............................................................................................
Second
Plaintiff
ANNA
ELIZABETH PRINSLOO (born
HEUKELMAN)
...................................
Third
Plaintiff
and
FRITS
HEUKELMAN
N.O.
…............................................................................
First
Defendant
FRITS
HEUKELMAN
..........................................................................................
Second
Defendant
JUDGMENT
MAKGOKA,
J
[1]
On 17 August 2012 I made the following order:
The
defendants' special plea is upheld with costs, which costs shall
include the reasonable and taxable costs in respect of the
following
experts:
1.
Dr Michael Hendrik Veldman
2.
Mr. Gerhadus Wilhemus van der Linde (Actuary)'
[2]
I undertook to furnish the reasons for the order later. Here are the
reasons. The defendants have raised a special plea of prescription
to
the plaintiffs' summons, in which the plaintiffs claim from the
defendants, delivery of an account and certain information regarding
the assets which devolved upon the plaintiffs and the second
defendant in terms of the massed estate upon the death of Frederik
Heukelman. The plaintiffs claim debatement of such account and
delivery of such assets as accrued to the plaintiffs, alternatively
payment of the value of such assets. In the alternative to main
prayer the plaintiffs claim payment of certain sums of money to
them
respectively, together with interest.
[3]
Effectively the plaintiffs are claiming that the first and second
defendants deprived them of the corpus of which they became
apportionate owners, on 6 May 1966, upon the death of their father,
Hendrik Heukelman. With specific reference to the special plea,
the
question is the point at which the plaintiffs became aware, or are
deemed to have become aware, of the fact that the defendants
had
caused them damage.
[4]
At the commencement of the hearing, the parties' respective counsel
informed me that it had been agreed that the defendants'
special plea
would be adjudicated upon first and will be separated from the merits
and quantum of the matter. It was furthermore
agreed that the
argument in respect of the special plea of prescription will be dealt
with on the common cause facts, and with
reference to a bundle of
documents, largely correspondence exchanged between the parties over
the years regarding the dispute.
[5]
The common cause factual background appears from a document titled
'Summary of Agreed Facts', handed up by agreement. The parties
are
siblings, born of the marriage between the late Frederik Hendrik
Heukelman and the late Rachel Margaret Heukelman. They also
have a
sister, Rita Schaars, who lives in the Netherlands. She is not a
party to these proceedings. For the sake of convenience,
and without
meaning any disrespect, I shall refer to the deceased father as
'Frederik' and to the mother as 'Rachel 'or 'the deceased',
as the
context dictates.
[6]
Frederik and Rachel executed a joint will dated 25 December 1952, in
terms of which their joint estates would mass upon the
death of the
first deceased and the massed estate would, upon the death of the
first deceased, be inherited by the children born
out of the
marriage. In terms of the joint will the surviving spouse would live
on the fruits of the estate so inherited by the
children. Frederik
died on 6 May 1966. All the siblings were minors at the death of the
late Frederik. The massed estate, being
the subject of this action,
came into existence in terms of the joint will in 1966, on Frederik's
death.
[7]
Rachel, as the surviving spouse, adiated to the joint will in terms
of a certificate of adiation. Barclays Bank administered
Fredrik's
estate and thereafter Rachel and the second defendant. A copy of the
first liquidation and distribution account was prepared
and Barclays
Bank also prepared a second and final liquidation and distribution
account. In terms of the latter account and in
accordance with the
joint will, the shares and cash were allocated to siblings, who,
accordingly, inherited, and became owners
of the massed estate of
Frederik and Rachel, subject to Rachel's lifelong usufruct.
[8]
The parties agree that as siblings, they received at least two
distributions of assets from the massed estate with the consent
of
all five of them as well as with the consent of Rachel, the one being
during 1987 and the other during 1996. A further distribution
took
place during 2005 but the issue of whether this was with the
consensus of all five the children, is in dispute.
[9]
Rachel died on 13 February 2007. The second defendant was appointed
as executor of her estate on 4 September 2007.The plaintiffs
failed
to ever claim from their deceased mother to frame an inventory of the
massed estate or the fruits earned from the massed
estate, as well as
the compilation of the "share portfolio" from time to time.
Summons was issued and served on the defendants
on 8 February 2010.
[10]
The parties are also in agreement that during her lifetime, Rachel
administered the massed estate in good faith and to the
best of her
ability. She did not become incapable of managing her own affairs
after she suffered an alleged stroke during or about
1995; she was
not in incapable of making any decisions regarding her financial
affairs by herself since 1995; she did not transfer
any of her
usufruct rights to the second defendant and no security for the due
performance of her duties as usufructuary was demanded
in terms of
the last will and testament of the late Hendrik or the Master of the
High Court or in terms of any court order.
[11]
With reference to the bundle of documents referred to earlier, it
contains 10 letters and a power of attorney. They are marked
'H1'-'H11'. What follows is a summary of each letter and its
contents.
(a)
Annexure 'H1'
It
is dated 3 November 1994, and was written by the first plaintiff to
the second defendant, in which the first plaintiff alleged,
among
others, wrongful and intentional misappropriation of the corpus by
Rachel and the second defendant of the massed estate.
The first
plaintiff, among others, required information regarding the massed
estate from the second defendant;
(b)
Annexure 'H2'
It
was written by the second defendant to the first plaintiff, in
response to 'HT, received this letter. The second defendant in
this
letter, among others, indicated the following to the first plaintiff
that:
Rachel,
had acquired her own estate from the fruits of the corpus: he, the
second defendant, had no particular knowledge of either
the massed
estate nor the deceased's estate at the time the letter was written;
the beneficiaries of the massed estate had already
received more that
the inheritance as it was at their father's death; and the
beneficiaries were properly maintained by the deceased.
The second
defendant referred to a meeting between himself, the first and second
plaintiffs in Rachel's home some years prior to
the writing of this
letter during which various issues were discussed. The second
defendant made the following remarks in the letter:
'Ons
het toe oopgemaak of is daar dinge wat jy nog weggesteek het. Ek het
nog nooit iets weggesteek nie en ek glo nie ma sal iets
vir jou
wegsteek inteendeel al haar boeke het jy mos gehad, al
haardokumente,onthou jy.'
(c)
Annexure 'H3'
This
letter is dated 10 December 1994, written by the first plaintiff to
the second defendant in response to annexure 'HZ. It was
also sent to
Rachel and the late Anna Robertson (sister of the late Frederik); the
second plaintiff; Rita Schaars and the third
plaintiff.
(d)
Annexure 'H4'
It
is dated 29 May 2004, and was written and signed by the first and the
second plaintiffs to the second defendant. The authors
allege, among
others, wrongful and intentional misappropriation of the corpus by
the second defendant and Rachel. The first and
second plaintiffs,
once more, as in annexure 'H1' required information and documentation
relating to the corpus as well as Rachel's
estate. They demanded
delivery of this information and documentation within 60 days from
date of the letter failing summons shall
be issued for delivery
thereof;
(e)
Annexure 'H5'
It
is dated 31 January 2006 written by attorneys Solomon Nicolson Rein &
Verster to the second defendant, on the instructions
of the first
plaintiff, in which it is required information regarding the massed
estate from the second defendant. This letter
also confirmed that a
meeting was during November 2005 where all the siblings, being the
beneficiaries of the massed estate, were
present, and that the
meeting referred to was arranged between all the beneficiaries in an
attempt to solve the disputes between
the plaintiffs and the second
defendant regarding the allegations surrounding the misappropriation.
The attorneys also in this
letter, based on certain allegations of
impropriety, demand delivery of documents failing which summons for
delivery shall be issued
from the High Court.
(f)
Annexure 'H6'
It
is dated 14 February 2006, written by attorneys Breytenbacht-Keulder
Inc to to the first plaintiff's attorneys of record at that
stage, on
the instructions of the second defendant, in response to the letter
Annexure 'H5'.
(g)
Annexure 'H7'
It
is dated 29 March 2006, from Solomon Nicolson Rein & Verster on
the instructions of the first plaintiff to the attorneys
for the
second defendant. This letter specifically stated and recorded the
following:
'Ons
klient is ook nie bereidom toe te laat dat die aangeleentheid
onbepaald vertraag word nie. Ons klient dring daarop aan dat
verrekenning moet plaasvind binne (veertien) dae vanaf datum hiervan.
Indien
u klient sou versuim om volledig te reageer op ons klient se
vereistes sal ons klient geen ander keuse gelaat word dan om
teen wil
en dank regsaksie in te stel teen die moeder Mev. R M Heukelman
waartoe u klient as verdure verweerder gevoeg sal word
vir
'nvolledige verrekening en debattering. Ons klient wil dit verseker
nie aan sy moeder doen nie, maar indien u klient sou aanhou
versuim
om rekenskap te gee van sy administrasie, sal u klient ons klient gee
ander uitweg laat nie.'
(h)
Annexure 'H8'
It
is dated 3 April 2006, written by Breytenbach-Keulder Inc on behalf
of the second defendant, and addressed to the first plaintiffs
attorneys of record at that stage. It is stated that the second
defendant had to obtain some records and did some enquiries,
following
which the second defendant reported as set out in the
letter.
(i)
Annexure “H9'
The
first plaintiff is the author of this letter, dated 30 November 2007
and addressed to Breytenbach Keulder Inc. The first plaintiff
stated
the following:
a.
'Die skuldoorsaak van my eis is my regmatige gedelte ge-erf van my
vader warop R M Heukelman slegs vruggebruik gehad het tot
met haar
afsterwe.
b.
Eis kon eers onstaan na RM Heukelman se afsterwe omdat sy vruggebruik
gehad het op my bates.
c.
F Heukeman word bygevoeg omdat hy volgens my inligting waar hy in
beheer was van my bates onregmatig en sonder my toestemming
voor RM
Heukelman se afsterwe van my bates onregmatig gevat het.
d.
eis het onmiddellik opeisbaar en betaalbaar geword na afsterwe van RM
Heukelman.Vrugte op my bates verdien na RM Heukelman se
afsterwe is
ook nou verskuldig en betaalbaar'.
(j)
Annexure'HH'
This
letter, dated 30 July 2008 was written by Rudman Attorneys to
Bretenbach Keulder Inc and raised queries emanating from Rachel's
liquidation and distribution account and it was requested that the
first defendant provide the second plaintiff and his auditor
with a
power of attorney to enable him to investigate the financial affairs
of the deceased in respect of bank statements, income
tax statements,
broker and computer share.
(k)
Annexure'MO'
This
is a special power attorney given by first defendant to the second
plaintiff and an auditor, Mr WA Eskteen, on 5 September
2008, and
sent to the plaintiffs' attorney by way of email on 8 September 2008.
The
defendants' special plea
[12]
The special plea by the defendants relies for its material facts on
the allegations contained in paragraphs 11,13 and 16 of
the
plaintiffs' amended particulars of claim. Since the allegations in
those paragraphs are very central to the adjudication of
the special
plea, they are quoted in full:
'11
In 1975 the massed estate that the plaintiffs and defendant inherited
and from which fruits the deceased lived, consisted of
immovable
property in Pretoria and Nylstroom and shares.
13.
After the deceased's death, the second defendant produced a will
executed by the deceased on 14 February 2006. The will purported
to
dispose of an estate to which the deceased was not entitled to as
these assets or the proceeds thereof had devolved on the plaintiffs,
Rita Schaars and the second defendant in terms of joint will of
Frederik and the deceased, alternatively the assets were assets
purchased on behalf of the plaintiffs and the deceased with the
proceeds of assets which had so devolved on the children;
16.
Since on or about 1996 up to the deceased's death the second
defendant wrongfully and intentionally transferred, sold or in
other
ways alienated assets belonging to the children having originated out
of the massed estate of Frederik and the deceased and
thereby
deprived the plaintiffs from the inheritance they received, subject
to the deceased's usufruct in terms of the joint will.
The effect of
the actions of the second defendant in his personal capacity and the
first defendant in his capacity as executor
is that the plaintiffs
have been deprived of the assets belonging to them being the corpus
of the massed estate and the defendants
refused to account in regard
thereto.'
[13]
The defendants further contend that on the face of their particulars
of claim the plaintiffs acquired knowledge of all the
facts
pertaining to their alleged claims, more than three years prior to
the service of the summons on the defendants, alternatively
with the
exercise of reasonable care would have acquired the knowledge,
alternatively could have acquired the relevant knowledge.
The
defendants argue therefore that the plaintiffs' summons was served on
them more than three years after the date the claim arose,
hence
special plea of prescription.
Prescription
[14]
In terms of section 11(d) of the Prescription Act 68 of 1969 (the
Act) a 'debt' shall prescribe after three years. The trite
principle
is that prescription does not begin to run until the creditor has
knowledge of the facts giving rise to his cause of
action (See Harker
v Fussel
2002 (1) SA 170
(T)). A 'debt' in this context is to be
construed as the correlative of a right of action or claim, as
distinct from a cause of
action (See Standard Bank of South Africa v
Oneanate Investments (Pty) Ltd
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) 826J-827A. The
word debt must be given a wide and general meaning denoting not only
a debt sounding in money which is due,
but also, for example, a debt
for the vindication of property (See Evins v shield Insurance Co Ltd
1979 (3) SA 1136
(W) at 1141F). In LTA Construction Limited v
Minister of Public Works and Land Affairs
1992 (1) SA 837
(C) at 849I
it was stated that the word included 'whatever is due under any
obligation, an obligation to do something or refrain
from doing
something, and includes an employer's obligation to hand over a
building to a contractor.' For a full exposition of
the meaning of
the word 'debt', see Sentrachem Ltd v Prinsloo
1997 (2) SA 1
(A)
at15B -16 in which the authorities on the point are usefully
summarized.
[15]
From the above exposition, there should not be any doubt that the
plaintiffs' action falls squarely within the definition of
'debt' as
envisaged in section s 11(d) of the Act. I turn now to consider the
merits of the plaintiffs' special plea. I have already
set out the
basis of the defendants' special plea. In what follows I state the
plaintiffs' replication to the defendants' special
plea, followed by
the submissions made on behalf of the plaintiffs.
The
plaintiffs' replication and submissions
[16]
In their replication, the plaintiffs plead that they acquired
knowledge of the facts pertaining to their claims 'during or
about'
March 2008 when the first defendant signed the first and final
liquidation and distribution account in the estate of Rachel.
Accordingly, it is contended that it was only thereafter that the
second plaintiff could verify the correctness of the account,
after
having obtained a power of attorney granting him full access to
Rachel's affairs. Developing his argument from that premise,
Mr
Dreyer SC, counsel for the plaintiffs, submitted that Rachel's
estate, represented by the first defendant as executor, was obliged
to render a proper account of her dealings with the usufructuary
property, and that the first defendant, as executor, had a fiduciary
duty to account of her dealings with the usufructuary property
[17]
With regard to the second defendant, it was submitted that he had a
duty to account, albeit only for those assets which still
existed on
the date of Rachel's death, since he assisted Rachel from
approximately 1972, and in 1995, when Rachel grew older and
frail,
and obtained a power of attorney to handle her financial interests.
It was therefore submitted that prior to the death of
the deceased,
the second defendant performed certain acts of administration on
Rachel's behalf by way of a power of attorney and
otherwise. This,
counsel submitted, was demonstrated by among others, at least two
distributions of assets being shares, after
the second defendant
received a power of attorney to act on the deceased's behalf i.e.1996
and 2005.
[18]
Counsel further submitted that since approximately 1996 up to
Rachel's death the second defendant wrongfully and intentionally
transferred, sold or in other ways alienated assets belonging to the
children having originated out of the massed estate of Frederik
and
Rachel, and thereby deprived the plaintiffs from the inheritance they
received, subject to the deceased's usufruct in term
of the joint
will. Mr. Dreyer further submitted that since the plaintiffs and the
second defendant were co-heirs of the assets
of the massed estate,
the second defendant also acted in a fiduciary relationship, either
as authorized by the deceased or as co-heir
or co-owner, vis-a-vis
the plaintiffs.
[19]
On these bases it was submitted on behalf of the plaintiffs that
since Rachel's estate was accountable for the usufructuary
assets on
her death, the right to claim an account in order to vindicate (or to
claim by condictio) the usufructuary assets or
their value, from the
second defendant could have arisen no earlier than Rachel's death on
13 February 2007. Accordingly, so was
the contention, the debt could
not have been due earlier than that date. As a correlative, the right
to claim (the right of action)
only then vested in the plaintiffs.
The fact that the plaintiffs could have taken steps earlier to call
for an inventory or have
applied for some other relief in no way
affects the vesting of the right of action referred to above. In
other words, the debt
is only due when it is claimable by the
creditor (the plaintiffs), and as a corollary thereof, is payable by
the debtor (the first
and second defendants).
[20]
Mr. Dreyer also submitted that the wrongful conduct in the present
case was a continuous one, as opposed to single, completed
wrongful
act, in respect of which prescription could not arise in terms of s
15(1) (d). In the present case the wrongful conduct
was alleged to
have endured until the death of Rachel on 13 February 2007, and
accordingly no debt could have been due to that
date. Having served
summons on 8 February 2010, the three year period of prescription has
not taken effect and the plaintiffs'
claim could therefore not have
prescribed. Lastly, Mr. Dreyer submitted that with regard to the
third plaintiff, she was not involved
in any situation from which it
can be inferred that she had knowledge of what was going on.
Discussion
[21]
The last point, raised in respect of the third plaintiff, can be
disposed of summarily. It is common cause that during November
2005
there was a settlement agreement involving all the siblings in terms
of which certain shares to the value of R724 000 were
to be
transferred to each of the siblings before December 2005.1 turn now
to consider the plaintiffs' contentions. In order to
properly locate
the plaintiffs' argument, regard should be heard to the common cause
facts and to the pleadings. In this regard
it should be borne in mind
that the plaintiffs and the second defendant became apportionate
owners of the massed estate of Hendrik
and Rachel in 1966.
[22]
It appears from the correspondence referred to earlier, that as early
as the 1990's the plaintiffs made allegations of improper
conduct on
the part of Rachel and the second defendant in connection with the
corpus. The thrust and tenor of the letters make
it patently clear
that the plaintiffs had knowledge of their right to claim an
inventory from Rachel in her capacity as usufructuary
and to claim an
inventory of the corpus. Though legal action was threatened, nothing
was done until 2008. It is not the plaintiffs'
case that their claim
only arose at the death of Rachel. In the bigger scheme of things,
the death of Rachel had no bearing on
the plaintiffs' claims.
[23]
The simple fact is this. If the plaintiffs realised, at the very
latest by 1996 that Rachel and the second defendant were allegedly
dissipating corpus assets, their right to claim accrued then. It
should be recalled that Mr. Dreyefs argument on this point was
that
the right to claim only vested upon termination of the usufruct, at
the death of Rachel. In principle there cannot be any
issue with that
submission, as a general proposition. Where I part ways with Mr.
Dreyer is his suggestion that, even in the face
of clear dissipation
of corpus assets by a usufructuary, the owners of the usufruct
property are entitled to adopt a supine attitude
and not take action
to protect their assets. Of course they may, in their election,
decide to conduct themselves in that manner.
However, that is not
without consequences, one of which is the risk of prescription.
[24]
In any event, the plaintiffs must make their election as to which
period is important for their claim, as the two periods contended
for
as relevant to their knowledge of dissipation of the corpus assets
are mutually exclusive. The plaintiffs claim that they only
realised
during March of 2008 after having sight of the liquidation and
distribution account in the estate of Rachel that her estate
comprised of, among others, corpus assets. On the other hand they
claim to have known, at least by 1996, that Rachel, together
with the
second defendant, was dissipating the corpus assets. This is
contradictory in terms.
[25]
As Ms Ferrerira, counsel for the defendants correctly submitted, on a
proper construction of the plaintiffs' main claim, the
plaintiffs are
effectively claiming an inventory pertaining to the corpus. When the
first defendant signed the first and final
liquidation and
distribution account in the estate of Rachel during March 2008, this
account served as an inventory of the estate
of Rachel,
simultaneously serving also as an inventory of the corpus. So what
the plaintiffs are seeking in their main claim (inventory
of the
corpus), they already had in March 2008 when they had sight of the
liquidation and distribution account in the estate of
Rachel. This
would render the relief claimed nugatory.
[26]
With regard to the second defendant, it should be accepted, from
common cause factual background that the case against the
second
defendant did not depend on the termination of the usufruct by
Rachel's death. There is therefore no reason whatsoever why
an action
could not have been instituted against him when it became clear that
he, together with Rachel, were dissipating the corpus
assets. In
their replication, the plaintiffs have not made any reference to the
second defendant in claiming when they acquired
the knowledge of the
facts pertaining to their claims. There is therefore no explanation
at all as to why a claim against the second
defendant in his personal
capacity would only arise on having sight of Rachel's final
liquidation and distribution account during
March 2008.
[27]
It is clear that the plaintiffs on their own version became aware of
the actions of Rachel, depriving them of their inheritance
seated in
the corpus, at the latest, during 1996. The plaintiffs failed to take
any action against Rachel, to interdict her, to
claim security, or to
protect their interest in the corpus despite being aware of all these
facts. Their inaction is the type sought
to be penalised by the Act.
The learned author APJ Bouwer in his work Die Beredderingsproses van
Bestorwe Boedels 2ed p 450 makes
the point that during the existence
of the usufruct period, the bare dominium owners does not have any
authority to interfere with
the use of its property, unless the
usufructuary abuses the property or discloses male fides which will
necessitate the dominium
to act.
[28]
Mr. Dreyer submitted in this regard (the plaintiffs' prior knowledge)
that a lot was based on no more than a suspicion. I do
not agree. A
cursory reading of the correspondence shows that the plaintiffs were
specific in their assertions regarding Rachel
and the second
defendant's alleged dissipation of the corpus assets. However, even
if this conclusion is wrong, suspicion was sufficient
for the
plaintiffs to approach the court to protect their interests. There is
simply no reason why the relief claimed by the plaintiffs
in these
proceedings (for debatement of account) could not have been brought
once the plaintiffs suspected any wrongdoing by Rachel
and the second
defendant.
[29]
The defendants did not have to be aware of the full extent of their
legal rights before approaching the court for relief, (see
Minister
of Finance and Others v Gore NO
2007 (1) SA 111
(SCA) para 17). The
knowledge which is required in this regard is 'the minimum necessary
to enable a creditor to institute an action'
(see Van Zijl v
Hoogenhout 2005 (2) SA (SCA) para 18, citing with approval Nedcor
Bank v Regering van die Republiek van Suid Afrika
[2000] ZASCA 154
;
2001 (1) SA 987
(SCA) para13.
[30]
I am in the result satisfied that the defendants' special plea of
prescription was well taken, and should be upheld. Costs
should
follow the cause. Ms. Ferreira urged me to order costs of 15 days for
which the trial of the matter was anticipated to last.
I am not
inclined to this request, for the simple reason that the matter did
not come to me as a special trial. I am, however,
disposed to grant
the reasonable costs of the two experts reserved by the defendants,
namely Dr. Veldman and Mr. Van der Linde.
[31]
For all of the above reasons I made an order referred to in paragraph
[1] above.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 24 FEBRUARY 2012
JUDGMENT
DELIVERED : 20 AUGUST 2012
FOR
THE PLAINTIFFS: ADV J DREYER SC
INSTRUCTED
BY : RUDMAN ATTORNEYS, PRETORIA
FOR
THE DEFENDANTS : ADV R FERREIRA
INSTRUCTED
BY: BREYTENBACH-KEULDER INC. .MODIMOLLE
and
VAN ZYL LE ROUX, PRETORIA