Ex parte: Rabie and Others (4906/2009) [2009] ZAFSHC 132 (12 November 2009)

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[2009] ZAFSHC 132
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Ex parte: Rabie and Others (4906/2009) [2009] ZAFSHC 132 (12 November 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Application
No.: 4906/2009
In
the
ex
parte
application
between:
ANSO
RABIE
1
st
Applicant
CHARL
PARKIN
2
nd
Applicant
LIESL
PARKING
3
rd
Applicant
CARIN
JANSEN
4
th
Applicant
CORNé
VISAGIE
5
th
Applicant
PIETER
ADRIAAN WESSELS
6
th
Applicant
(The
first, third, fourth and fifth applicants in their personal capacity
and all the six applicants in their capacity as trustees
in the SEP
HUMAN TESTAMENATRY TRUST, NR MT8038/2009)
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD
ON:
22 OCTOBER 2009
_____________________________________________________
DELIVERED
ON:
12 NOVEMBER 2009
_____________________________________________________
[1] These were motion
proceedings. The matter came before me by way of an ordinary
application. The
ex
parte
application served before me in the unopposed motion court. The
relief sought is twofold. The first dimension of the relief sought
is the grant of certain powers to the trustees to deal with the trust
property. The second dimension thereof is declaring the condition
of
the last will unenforceable.
[2] Jurgens Johannes
Septimus Human was born on the 11
th
April 1940. He lived at Marine Parage in Durban in Kwazulu Natal.
He was at Senekal in the Free State Province on 16 November 2006
where he executed a will – annexure j.
[3] He stated in his will
that upon his death all his immovable properties must be devolve upon
the trust called Sep Human Testamentary
Trust. He als determined
that his four children would be equal capital beneficiaries of the
trust. He further determined that his
children together with their
children would become income beneficiaries of the trust. Besides the
fixed properties, he also bequeathed
all his livestock, tractors and
implements to the same Sep Human Testamentary Trust.
[4] He appointed his four
children, his attorney together with the executor of his estate as
the six trustees of the aforesaid trust.
[5] The deponent to the
founding affidavit is Mnr Charl Parkin, the second applicant. He is
an accountant by profession, the testamentary
executor and
co-trustee. He is the testator’s son-in-law. He is married to the
third applicant. He avers that his father-in-law
died on 6 July 2009
and that the Master of the High Court appointed him as the executor
and authorised him as such to liquidate and
distribute the estate of
J J S Human. The letters of executorship were issued in Bloemfontein
on 13 July 2009 under estate number
8038/2009, annexure “A”
.
[6] The first, third,
fourth and fifth applicants are the surviving daughters of the late J
J S Human. The sixth applicant is his
attorney. The daughters, the
attorney and the executor were authorised were authorised by the
Master of the High Court in terms
of section 6(1), Trust Property
Act, 57 of 1988 to act as the trustee(s) of the aforesaid trust. The
authority was given in Bloemfontein
on 26 August 2009 – Annexure
“B”. The four ladies involed in these proceedings support the
application each in her dual capacities
– first, each acts in her
personal capacity as a child of the testator, secondly, as a trustee
of the aforesaid testamentary trust.
[7] This application was
precipitated by a testamentary restriction contained in clause 2.6 of
the testator’s will. The clause
reads as follows:
“
Die restant van my boedel, niks
uitgesonder nie, bemaak ek in gelyke dele aan my 4 kinders.
Ek
bepaal dat die netto kontant wat op my kinders vererf, nie deur hulle
gebruik mag word om die boerdery trust te bedryf of te finansier
nie.
Ek bepaal dat die kontant wat op elkeen van my kinders vererf, deur
hulle belê moet word en dat die rente inkomste, en indien
nodig ook
van die kapitaal, aangewend moet word vir die Graad en Nagraadse
studies van elkeen van my kleinkinders totdat hulle afgestudeer
het.
Nadat my kleinkinders afgestudeer het kan elkeen van my kinders die
oorblywende kapitaal wat dan beskikbaar mag wees, vir hulle
eie
doeleindes na goeddunke aanwend.
”
[8] It is the highlighted
portion of the clause which the appellants consider unnecessarily
burdensome to the enjoyment of the inheritance
by the testator’s
daughters. They therefore want to have it scrapped and the will
executed as if such restrictive condition was
pro
non scripto
.
[9] Perhaps it is as well
to take stock of the testator’s current grandchildren. The first
applicant, Ms Anso Rabie, is his first
daughter. She is a 42 year
old widow and a credit controller of Alberton. She has one minor
child, Casper, a boy 17 years of age
– Annexure “D”. The third
applicant is Ms Liesl Parkin, his second daughter. She is a 40 year
old optometrist of Port Elizabeth,
she is a married woman. The
deponent is her husband. The couple is childless – Annexure “E”.
The fourth applicant, Ms Carin
Janse, is his third daughter. She is
a 36 year old surgeon of Tshwane. She is a married woman and a
mother of three minor children,
a girl 8 years of age, another girl 5
years of age and a boy 19 months of age – Annexure “F”. The
firth applicant, Ms Corne
Visagie, is his fourth daughter. She is a
31 year old beautician and health-therapist of Tshwane. She is
apparently single at present
and has no dependent minor child –
Annexure “G”.
[10] Therefore the
testator was survived by four grandchildren. Biologically there are
still realistic prospects of further posthumous
grandchildren. The
interests of such potential heirs and heiresses cannot simply be
ignored. After all, these are precisely the
interests which the
testator sought to protect. Besides Ms Parkin, the testator’s
other three daughters have not expressly ruled
out the possibility of
new additions to the current sizes of their families through birth or
adoption.
[11] Ms Parkin’s
husband apparently suffers from a certain medical condition. Since
she and her husband have been advised that
such medical condition was
hereditary, the couple has resolved to have no babies. The second
applicant avers as follows in paragraph
3.2 of the founding
affidavit:
“
Ek en derde applikante het nie
enige kinders nie en het ons ook geen bedoeling om enige kinders te
verwek nie vanweë mediese probleme
waaraan ek ly en die daadwerklike
moontlikheid dat my mediese toestand oorerflik is. Ek heg derde
applikante se ondersteunende beëdigde
verklaring hiertoe aan as
bylaag “
E
”.”
[12] The Master of the
High Court was somewhat concerned about the couple’s failure to
beef up their claim with any written medical
proof – see paragraaf
2 of the Master’s Report. Indeed the averment is not
satisfactorily verified by any medical practitioner.
It is also not
adequately particularised. The alleged medical condition is not
specified. It may well be that the coupled reckoned
it to be a
sensitive and confidential matter, the disclosure of which would have
an adverse impact on their privacy rights. In
ex
parte
applications sufficiently full measure of disclosure is generally
required. The applicants have to take the court into their
confidence
by adequately disclosing all the relevant facts so that
the court can make an informed decision. Unless this is done the
court may
grant an order with serious adverse impact on the rights of
the absent but interested parties – such as the unborn children in
the instant case.
[13] The restrictive
condition complained of is fraught with impracticalities. It is
clear and obvious that the testator placed a
very high premium on
education. Of course education must be respected. Two of his
daughters are well educated. They are professionals
in intricate
fields of human endeavour. This clause indicates just how much the
testator cherished the ideal of having his grandchildren
well
educated.
[14] His testamentary
direction that the cash component of each of his daughters
inheritance must be invested and first utilized for
the purpose of
educating each of his grandchildren until each of them graduates and
obtains a further post-graduate qualification
is extremely
restrictive and burdensome to his immediate heiresses and their
children as well.
[15] This is particularly
so since there is no time frame linked to the study programme. There
is no numerical deadline for a child-bearing
or child adoption by any
of the daughters. There is no provision made for a variety of
scenarios that may arise in the future.
For instance, one, two,
more, or all the grandchildren may not want to pursue education to
such great heights. What then? There
may be a grandchild or two who
genuinely want to attain such high academic goals but find it very
difficult, if not impossible to
attain on account of learning
disabilities or intellectual limitations. What then? The will is
silent. I get the impression that
it probably never crossed his mind
that one or two of his daughters may in theory never have children or
wish to adopt children .
[16] Apart from possible
further births and adoptions, the current situation of only four
grandchildren already poses enormous problems
to the four sisters.
There are no separate and distinct avenues of inheritance created in
respect of each daughter. Consider this
scenario. The first
applicant has one child. Suppose she keeps it that way forever.
Suppose further that her son studies and obtains
B.Com and later
M.Com at the age of 25 years, in other words six years from now. By
then the first applicant will be 48 year of
age. Will she be able to
claim her share of the inheritance in 2015 on the basis that her one
and only child, the testator’s first
grandchild, has completed his
post-graduate studies?
[17] It appears to me
that she will not succeed with her claim. Before the last of the
current crop of the grandchildren qualifies
in accordance with the
testator’s directive, there is only one indivisible inheritance.
Her share thereof, according to the clause,
is an undivided quarter,
inextricably linked to those of her younger sisters and their
children. Therefore she will have to wait
until the fourth
applicant’s son, now less than 2 years, also completes his
post-graduate studies, wishfully also at the age of
25 years in 2032.
By then the first applicant will be 65 years of age. This is absurd
in my view. The testator could not have
anticipated such a scenario
of prolonged and uncertain delays.
[18] The hardship of the
condition is most severe in the case of the third applicant than any
of her siblings. She and her husband
have no children and do not
intend having any. Although the couple’s vague declaration of
intent is open to critique, I am inclined
to view that such vagueness
cannot validate the outright rejection of their sworn statements. In
reaching this conclusion I am fortified
by the master’s lame
comment. I can see no good reason why the third applicant must wait
until about 2032, at the earliest, for
her younger sister’s
youngest son to complete his post-graduate studies.
[19] To a lesser extent,
the same may be said about the fifth applicant who is currently
single and childless. The delay in the distribution
of the
inheritances of the daughters may be infinitely prolonged by every
birth of a further grandchild in the future. If one of
the sisters,
say for the sake of argument, the youngest of the sisters, who is the
fifth applicant, wants to spite her elder sisters
she can easily
frustrate them by adopting child after child until all her sisters
have died.
[20] Burdensome and
restrictive conditions of this type often arise out of good
intentions but may give rise to circumstances which
were unforeseen
by the testator. Sometimes such unforeseen circumstances may create
impracticalities which seriously interfere with
the enjoyment of the
legacies which the testator had intended to leave behind for his
beloved immediate beneficiaries. In dealing
with testamentary
conditions designed to preserve fideicommissary property in which
minors and unborn children are interested, it
should be constantly
kept in mind that the fiduciary also has rights in such property
which rights the testator by his will conferred
on him or her and
intended him or her to enjoy without undue delay.
Ex
parte
Visagie
1940 CPD 42
on 44.
[21] At paragraph 8 of
the founding affidavit the executors states:
“
8.1 Die oorledene, wat ongetroud
was tydens sy lewe, was ‘n vermoënde man wat volgens die
voorlopige inventaris wat deur my voorberei
en by die Meester
ingedien is, bates van ongeveer
R10
641 297.00
nagelaat het.
8.2 Hierdie bates bestaan uit verskeie
onroerende eiendomme, synde ‘n plaas in die Lindley-distrik, plase
in die Senekal-distrik,
‘n woonhuis op die dorp Senekal en ‘n
deeltitel-eenheid te Durban. Daarbenewens is voertuie, meublement en
vee agtergelaat en
beloop die kontant in die boedel bykans
R3
miljoen
.”
[22] In his report dated
22 October 2009 the registrar of deeds in Bloemfontein specified the
testator’s fixed properties, excluding
the property in Durban. The
registrar described the landed properties in the Free State Province
only as follows:
“
2. Volgens die oorkondes van
hierdie kantoor is die volgende eiendomme geregistreer op die naam
van die oorledene;
2.1 Die plaas Concordia no. 39 distrik
Senekal. Die plaas is verbind met verband no. B3030/2002 ten gunste
van Nedcor Bank in die
bedrag van R55 000,00. Die eiendom word gehou
kragtens transportakte no. T8107/1972.
2.2 Die Restant van gedeelte 1 en
gedeelte 2 van die plaas Mostertfontein no. 136, distrik Senekal.
Ook verbind en gehou soos in
paragraaf 2.1 hierbo beskryf.
2.3 Die plaas Weimar no. 1214, distrik
Senekal. Ook verbind en gehou soos in paragraaf 2.1 hierbo beskryf.
2.4 Die plaas Aboukir no. 300, distrik
Lindley. Groot 738,7303 hektaar en gehou kragtens Transportakte no.
T33948/2001.
2.5 Erf 368 Senekal gehou kragtens
Transportakte no. T33948/2001.”
[23] It will be readily
appreciated therefore, that the late J J S Human was a man of great
substance. He had accumulated enormous
wealth in his lifetime. It
is estimated that he has left behind a deceased estate worth
approximately R14 million. The cash component
thereof alone is R3
million. He, remarkably, has no debts whatsoever.
[24] In view of the
serious impracticalities of the restrictive testamentary conditions
as well as the enormous wealth of the testator,
as well as the
natural bonds between the second and the third generations of the
beneficiaries, I am of the firm view that the clause
complained of
should not be allowed to stand. I am persuaded that there will
probably be sufficient funds in the testamentary trust
for the
education of the testator’s grandchildren – both the living and
the unborn. In the circumstances, it does not appear
that, on behalf
of the minor grandchildren, the court has to exact anything more from
the testator’s four daughters as fiduciaries
of such children –
alive or unborn – than that, as mothers, they should responsibly
and genuinely safeguard their children’s
rights and interests in
the
fideicommissary
property. With the aid of their co-trustees, they should faithfully
work out a distribution plan, reserve fund or an investment
portfolio
in terms of which the interests of the
fideicommissary
children are adequately provided for and safeguarded. Such a plan
must, of cause, be approved by the master. Provided this is
done
there will be no danger, real or potential, to the interests of such
children to justify a need for the appointment of a curator
ad
litem
for them. I would therefore expunge the restraint.
[25] In now turn to
consider the powers and functions which the applicants seek to be
granted to them in order to run the affairs
of Sep Human Testamentary
Trust. This is the prayer 1 of the notice of motion. The proposed
powers are embodied in annexure “X”
to the founding affidavit.
The Registrar of Deeds correctly pointed out that three of the
provisions of annexure “X” were in
conflict with annexure “J”
– the testator’s will.
[26] The relevant portion
of annexure “J” is clause 2.3 which reads:
“
Ek benoem en stel hiermee aan as
Trustees van voormelde Trust my 4 (vier) kinders tesame met my
Eksekuteur.
Ek bepaal dat my Trustees gedurende
hulle leeftyd, of vir so lank as wat hulle bevoeg is om as Trustees
op te tree, die onroerende
bates wat aan bogemelde trust bemaak is,
nie mag verkoop of met ‘n verband mag beswaar nie. Voormelde Trust
sal dus ontbind sodra
die laaste van my vier kinders tot sterwe sou
kom. Ek bepaal dat by die ontbinding van die Trust, die trustbates
in gelyke dele
sal vererf op my kleinkinders wat dan in lewe mag
wees.
Ek bepaal verder dat my Trustees in
eie diskresie mag besluit oor die verdeling van die trust se
inkomste.”
[27] The offending
provisions of the powers sought as per annexure “X” read as
follows:
“
2.2 onroerende en roerende eiendom
aan te koop, te verkoop, verruil, oor te dra en te transporteer,
onderhewig aan die verkryging
van die toestemming van die
Hooggeregshof ten opsigte van die vervreemding van onroerende
eiendom;
…
2.5 trustgoed onder verband te beswaar
vir lenings wat hierkragtens gemagtig is onderhewig aan die
verkryging van die toestemming
van die Hooggeregshof ten opsigte van
onroerene eiendom;
…
3.
Dit word uitdruklik bepaal dat alle
handelinge met betrekking tot die vervreemding of beswaring op welke
wyse ookal van die trust
se onroerende eiendom slegs mag geskied met
die eenparige vooraf toestemming van al die trustees en voorts
onderhewig aan die verkryging
van die toestemming van die
Hooggeregshof. In alle ander gevalle sal die magte en bevoegdhede
uitgeoefen mag word by wyse van gewone
meerderheidstem.”
[28] Mr Cillié, counsel
for the applicant, conceded during the course of the motion that the
aforegoing three provisions of annexure
“X” were not in harmony
with the aforesaid clause 2.3 of the will which was unchallenged by
the applicants. Accordingly I find
the powers sought indeed to be
incompatible with the testator’s will. Therefore they cannot be
authorised as currently formulated.
[29] Mr Cillié correctly
anticipated my attitude. Therefore he handed in a draft document
whereby the original annexure “X”
was amended. To remove the
cause of the complaint by the registrar of deeds. The document was
marked annexure “X”. Since this
document did not form part of
the original set of annexures to the founding affidavit – and since
it was not filed under cover
of any supplementary affidavit to the
founding affidavit – it is inappropriate to describe it as an
annexure. Although it was
intended to replace annexure “X”,
annexure “X” was not formally withdrawn. For the sake of
experience, I took it upon myself
to label it, exhibit “X”.
[30] The purpose of
exhibit “X” was to address the concerns raised by the registrar
of deeds.
Paragraph 2.2., exhibit
“X” amends paragraph 2.2, annexure “X”. It reads:
“
2.2 onroerende en roerende eiendom
aan te koop, te verkoop, verruil, oor te dra en te transporteer,
onderhewig aan die
verkryging van die toestemming van die Hooggeregshof ten opsigte van
die vervreemding van onroerende eiendom”
Paragraph 2.5., exhibit
“X” amends paragraph 2.5, annexure “X”. It reads:
“
2.5 trustgoed onder verband te
beswaar vir lenings wat hierkragtens gemagtig is
onderhewig
aan die verkryging van die toestemming van die Hooggeregshof ten
opsigte van onroerende eiendom;”
Paragraph 3, exhibit “X”
amends paragraph 3, annexure “X”. It reads:
“
3. Dit word uitdruklik bepaal dat
alle handelinge met betrekking tot die vervreemding of beswaring op
welke wyse ookal van die trust
se onroerende eiendom slegs mag
geskied met die eenparige vooraf toestemming van al die trustees,
onderhewig aan die verkryging van die toestemming van die
Hooggeregshof ten opsigte van onroerende eiendom
.”
[31] I am satisfied that
so amended such powers may be duly exercised without doing real harm
to the essence of what the testator
wished to achieve by inserting
the prohibition. Accordingly I would authorised the trustee to
exercise the powers as more fully
set out in exhibit “X” provided
that the specified powers in terms of paragraph 2.2, 2.5 and 3 are
exercised subject to the written
approval of the Master of the High
Court in respect of any immovable property wherever situated, nothing
exempted. Obviously, the
court as the upper guardian of all children
retains its inherent powers to interpose its final authority on any
such alienation transaction
as the master may approve in the future.
[32] Accordingly I make
the following order:
32.1 The powers and
functions as encapsulated in exhibit “X” are hereby granted to
the applicants as trustees of Sep Human Testamentary
Trust, No
8038/2009.
32.2 The portion of
clause 2.6 of the will of Jurgens Johannes Septimus Human signed at
Senekal on 16 November 2006 which reads as
stated below is declared
unenforceable:
“
2.6 … Ek bepaal dat die kontant
wat op elkeen van my kinders vererf, deur hulle belê moet word en
dat die rente inkomste, en indien
nodig ook van die kapitaal,
aangewend moet word vir die Graad en Nagraadse studies van elkeen van
my kleinkinders totdat hulle afgestudeer
het. Nadat my kleinkinders
afgestudeer het kan elkeen van my kinders die oorblywende kapitaal
wat dan beskikbaar mag wees, vir hulle
eie doeleindes na goeddunke
aanwend.”
The first, third,
fourth and fifth applicants are hereby declared to be unconditional
legatees of the testator and as such entitled
to their separate
bequests free from any restrictive provision or condition as set
out in clause 2.6 of the testator’s will
as more fully set out in
paragraaf 28.2 of this order.
32.4 The consent of the
master for the alienation of the testator’s immovable property
shall be subject to the approval of this
court.
32.5 The costs of this
application shall be borne and paid by the deceased estate of the
late Jurgens Johannes Septimus Human, estate
number 8038/2009 on the
scale as between attorney and client.
______________
M. H. RAMPAI, J
On behalf of
applicants: Adv. H. J. Cillié
Instructed by:
Naudes
BLOEMFONTEIN
/em