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[2011] ZAGPPHC 228
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Barnard NO v Van der Merwe (7706/2007 â A767/2009) [2011] ZAGPPHC 228; 2012 (3) SA 304 (GNP) (2 December 2011)
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
DATE: 02/12/2011
30/11/2011
CASE NO: 7706/2007 - A767/2009
In the matter between:
CELESTE
BARNARD
..............................................................................................................
APPELLANT
(In her capacity as the executrix
of the estate of the late
Willem van der Merwe subsequently
substituted by Shirley Anne Le Noury)
And
CAROLINE VAN DER MERWE (formerly
BARTUM)
..........................................................
RESPONDENT
JUDGMENT
MAKGOBA. J
[1] This is an appeal against a
decision of a single judge of this division (PHATUDI J) who found
that:
1.1 The applicant has a claim against
the estate of the late Willem Karel van der Merwe (“the
deceased”) for the accrual
as envisaged in clause 6 of an
ante-nuptial contract entered into between the applicant and the
deceased;
1.2 That the applicant’s accrual
claim arose as of right and no separate claim has to be lodged with
the respondent in order
for the accrual principle to apply;
1.3 That clause 6 of the ante-nuptial
contract entered into between the applicant and the deceased shall be
interpreted by the respondent
to include the following in the accrual
due to the applicant:
All movables, all immovable
properties, all insurance policies, all household furniture and goods
and the joint banking accounts,
if any, acquired subsequent to their
marriage;
1.4 The accrual, as aforesaid, be
determined and included in the final liquidation and distribution
account in the estate of the
deceased.
[2] The present appellant, who is the
executrix in the estate of the late Willem Karel van der Merwe, was
the respondent/defendant
in the court a quo. The respondent in this
appeal is the widow of the late Willem Karel van der Merwe and was
the applicant/plaintiff
in the court a quo.
For purposes of this appeal the
parties will be referred to as the appellant and respondent
respectively.
[3] The main issues in this appeal are
the findings set out in paragraph 1.2 and 1.3 above. In practical
terms the said findings
had the following effects for the parties:
3.1 The executor had to include a
claim for the respondent’s accrual in his liquidation and
distribution account and there
was no need for her to lodge such a
claim.
3.2 Clause 6 of the ante nuptial
contract between the parties had to be interpreted to take into
account for the respondent’s
claim the increase in the
deceased’s estate arising from the fallowing assets: all
movables, all immovable properties, all
insurance policies, all
household furniture and goods and the joint banking accounts, if any,
acquired subsequent to the marriage.
[4] The dispute in the matter arose
from the winding-up of the deceased estate of the respondent’s
spouse, the late Mr Van
der Merwe (“the deceased”). The
parties made their marriage subject to the accrual system in terms of
an ante-nuptial
contract executed on 30 October 1986. The deceased
passed away on 21 January 2004 and the appellant as the appointed
executrix
dealt at all material times with the administration of the
deceased estate.
[5] The administration of the estate
was uneventful. Notice for the lodgement of claims was given on 5
March 2004 as provided for
in terms of
section 29
of the
Administration of Estates Act 66 of 1965
.
No claim was lodged on behalf of the
respondent although she was informed of the aforementioned
advertisement. The first liquidation
and distribution account was
prepared and same was advertised on 10 September 2004. The first
liquidation and distribution account
did not include an accrual
claim. The respondent had knowledge thereof and was specifically made
aware of her right to lodge an
objection.
No objections were received and
distribution to the heirs was effected after the expiry of the
objection period as a result whereof
substantial amounts were paid
out to the heirs and legatees, which included the respondent.
[6] During early 2005 and belatedly
so, the respondent raised a potential accrual claim against the
estate in terms of the provisions
of the
Matrimonial Property Act 88
of 1984
.
Material disputes arose between the
executor and the respondent as to the nature and extent of the
accrual claim and it thus became
necessary to have the disputes
resolved by the court a quo.
[7] It is significant to mention that
an attorney, Mr Coetzee, had all along been engaged by the respondent
during the whole process
of the administration of the deceased
estate.
[8]
8.1 The case started as an opposed
motion which was referred to trial on the following issues in terms
of an order by SHONGWE DJP:
“
6. The
issues to be decided at the trial are limited to:
6.1 Whether there was just reason for
the Respondent not to have dealt with the accrual claim of the
Applicant in the first liquidation
and distribution account in the
estate of the late Willem Karel Van der Merwe;
6.2 Whether it was necessary for the
Applicant to have lodged and to prove her accrual in the aforesaid
deceased estate;
6.3 The quantum of the Applicant’s
accrual claim.”
8.2 At the commencement of the trial
the parties asked the court a quo to decide whether three categories
of assets were subject
to the accrual. The specific assets were:
8.2.1 Three agricultural holdings
(Holdings 31, 32 and 33 Wheatlands, Randfontein, valued at R435
000.00, R90 000.00 and R120 000.00
respectively);
8.2.2 Two investments in unit trusts
(a Sanlam unit trust and an Old Mutual unit trust, valued at R12
527.41 and R62 415.68 respectively);
and
8.2.3 Various insurance policies
totalling R5 872 681.00.
[9] In order to resolve the first
issue in this appeal, whether the respondent’s accrual claim
arose as of right and required
no separate claims to be lodged with
the executrix, one has to determine whether an accrual interest is a
claim against the estate
or whether it is an asset or an inheritance
in the estate.
[10] The above question can be
answered in the light of the description of the “accrual
system” applicable to the matrimonial
regime. The accrual
system has been described as “a deferred community of property”
or “a deferred sharing of
the profits of spouses married out of
community”.
See: Sinclair: Law of Marriage page
142
[11] On dissolution of marriage,
whether by death or divorce, the net increases in the spouses’
respective estates are notionally
added up and then divided equally.
The accrual is thus the difference between the net of the estate at
commencement, properly escalated,
and the net value at dissolution.
At dissolution of marriage a calculation is made by allowing to the
spouse, whose estate had
no or a smaller accrual, a claim against the
other spouse or his/her estate for an amount equal to half of the
difference between
the accrual of the respective estates of the
spouses. In short, the accrual of each separate estate is first
established, the accruals
are added together and then divided by two.
Each spouse is entitled to half of the total established in this
fashion. The spouse
who holds more than a half share of the accrual
assets is obliged to pay half of the difference to the other. See:
Radebe and Another
v Sosibo NO and Others
2011 5 SA 51
at 54C-E.
[12] Accordingly, in the present case
the first step to be taken was the determination of the accrual of
the separate estates of
both the deceased and the respondent and then
to calculate what claim, if any, either spouse or their executor had
against the
estate of the other.
Section 3(1)
of the
Matrimonial
Property Act 88 of 1984
provides:
“
At the
dissolution of a marriage subject to the accrual system, by divorce
or by death of one or both spouses, the spouse whose
estate shows no
accrual or a smaller accrual than the estate of the other spouse, or
his estate if he is deceased, acquires a claim
against the other
spouse or his estate for an amount equal to half of the difference
between the accrual of the respective estates
of the spouses.”
The word “claim” means “a
demand for something as due; a statement of one’s right to
something” as
defined in the Oxford Shorter Dictionary, 5th ed.
2002, and accepted in Van Immerzeel & Another v Santam Ltd
2006
(3) SA 349
(SCA) on p 354 par [12]:
“
[12] The
natural meaning of ‘claim’ is ‘a demand for
something as due; an assertion of a right to something’
(The
Shorter Oxford Dictionary). This definition was also accepted in
respect of a ‘claims policy’, by Stocker LJ in
Thorman v
New Hampshire Insurance Co. (U.K.) Ltd and Home Insurance Co. [1988]
1 Lloyd’s Rep. 7 (CA) at 15. In the same case
Donaldson LJ at
11 agreed ‘that a claim within the meaning of the policy was
the assertion by a third party against the insured
of a right to some
relief because of the breach by the insured of the duty referred to
in
section 1
of the policy, i.e. professional negligence.” (per
Streicher JA)
See further Albert v Pearse, N.O. &
Another
1973 (3) SA 633
(N) at 637H to 638A.
The Afrikaans text of the
Matrimonial
Property Act has
been signed. The Afrikaans text uses the word
“vordering” where the English term is “claim”.
“Vordering”
means exactly the same as “claim”:
Kommissaris van Binnelandse Inkomste v Boedel Du Toit
1985 (4) SA 594
(NC) at 598D-E.
[13]
Section 4(2)
of the
Matrimonial
Property Act provides
that the accrual is to be determined before
effect is given to any testamentary disposition or donatio mortis
causa.
It is therefore clear that the quantum
of the accrual has to be determined and a claim for it be lodged
against the estate. Hence
in the liquidation and distribution account
an accrual claim will appear as an ordinary claim against the estate
and not as a part
thereof which is to be excised before any claim or
inheritance is considered.
[14]
14.1 It stands to reason that the duty
must of necessity lie on the surviving spouse to inform the executor
of the existence of
such a claim and to quantify it. This was not
done by the respondent until after the first liquidation and
distribution account
had become finalised. It is not incumbent upon
the executor (the appellant in this case) to consider any claim which
has not been
duly lodged and which he could not possibly quantify.
14.2 The respondent seems to have
regarded her position as similar to that of a widow who was married
in community of property.
An executor dealing with an estate where
the marriage was in community of property knows that after taking
care of the debts of
the joint estate, one half of what remains
belongs to the widow and is awarded to her before even beginning to
consider inheritances.
There is no need for her to prove a claim
against the estate and he knows that the heirs have no claim on what
belongs to her.
[15] I turn to the second issue raised
in this appeal. This involves the identification of the assets that
should be considered
to determine the accrual claim. It hinges upon a
proper interpretation of the provisions of clause 6 of the
ante-nuptial contract
which provides as follows:
“
6. The
accrual system referred to in chapter 1 of the Matrimonial Property
Act No 88of 1984 (herein referred to as the Act) (but
excluding any
amendments thereof) shall apply to the following assets of the said
Willem Karel van der Merwe and Caroline Bartum:
(a) any movable or immovable property
acquired by one or both of the intended consorts subsequent to their
marriage which is ordinarily
used by both of them while they are
residing together for shelter or transportation, or for household,
educational, recreational,
social or aesthetic purposes.
Save as aforesaid the said accrual
system is expressly excluded in respect of the intended marriage.”
[16] The general provision in respect
of the acquisition of any movable or immovable property by either or
both spouses subsequent
to their marriage is qualified in clear and
specific terms in clause 6. The first qualification is that the
accrual relates to
acquired property which was ordinarily used or
enjoyed by both of them while they reside together. The further
qualification is
that the property acquired must have been used and
enjoyed by both for the specific purpose of shelter or transportation
or household
or educational or recreational or social or aesthetic
purposes.
The accrual regime applies only to
those assets that meet both qualifications.
[17] The respondent has claimed that
the assets listed in paragraph 8.2 above should be taken into account
when calculating the
accrual. The court a quo granted an order in her
favour in this regard. With the provisions of clause 6 of the
ante-nuptial contract
in mind we now have to decide whether the court
order a quo was correct.
[18] The three agricultural holdings,
namely Polt 31, Wheatlands, Randfontein, Plot 32 and 33 Wheatlands,
Randfontein were acquired
by the deceased. There were offices and
workshops for the deceased’s transport business on the
properties. Neither of those
activities carried on the holdings or
uses fall within the terms of clause 6 of the ante-nuptial contract.
The properties are therefore
not taken into account when calculating
the accrual.
[19] The insurance policies and unit
trusts clearly do not fall into any category listed in clause 6 of
the ante-nuptial contract
and cannot be part of the accrual of the
deceased’s estate.
[20] The respondent is entitled to
half of the funds in the joint banking account, if any. The remainder
cannot form part of any
accrual.
[21] The loose assets in the form of
farming equipments do not fall into any category listed in clause 6
of the ante-nuptial contract
and cannot form part of any accrual.
[22] The appellant has conceded and/or
accepted that movables in the form of motor vehicles, furniture and
household goods are subject
to the accrual, regime.
[23] I come to the conclusion that the
judgment and/or order of the court a quo cannot stand. The appeal is
accordingly upheld with
costs, including the costs occasioned by the
employment of two counsel and the following is substituted for the
order of the court
a qou:
1. It is declared that there was just
reason for the defendant not to have dealt with the accrual claim of
the plaintiff in the
first liquidation and distribution account in
the estate of the deceased;
2. It is declared that it was required
of the plaintiff to have lodged and proved an accrual claim in the
estate of the deceased
and that the normal principles relating to the
late claims should be applied in respect of the plaintiff’s
accrual claim
as envisaged in clause 6 of the ante-nuptial contract
entered into between the plaintiff and the deceased;
3. Clause 6 of the ante-nuptial
contract entered into between the plaintiff and the deceased shall be
interpreted as not including
the following in the calculation of the
share of the deceased’s accrual that is due to the applicant:
3.1 Plots 31, 32 and 33, Wheatlands,
Randfontein;
3.2 The two investments in unit trusts
reflected as items 8 and 9 in the first liquidation and distribution
account; and
3.3
The insurance policies listed as items 44 to 58 and 64 of the first
liquidation and distribution account,
4. It is declared that the plaintiff
is entitled to half of the funds in the joint banking account, if
any.
5. Subject to the above, the plaintiff
accrual claim be quantified and included in the final liquidation and
distribution account
in the estate of the deceased.
The applicant/plaintiff to pay the
costs on party and party scale.
EM MAKGOBA
JUDGE OF THE NORTH GAUTENG HIGH COURT
I agree
E BERTELSMANN
JUDGE OF THE NORTH GAUTENG HIGH COURT
I agree
FG PRELLER
JUDGE OF THE NORTH GAUTENG HIGH COURT
7706/2007/sg
Heard on: 5 October 2011
For the Appellant: Adv S J Maritz SC &
N J Louw
Instructed by: Rooth & Wessels,
Pretoria
For the Respondent: Adv A Knoetze
Instructed by: Uys Matyeka Swartz
Attorneys
c/o Hack Stuppel & Ross, Pretoria
Date of Judgment: