Danielz N.O v De Wet and Another; De Wet and Danielz N.O and Another (2944/06) [2008] ZAWCHC 35; [2008] 4 All SA 549 (C) 2009 (6) SA 42 (C) (19 June 2008)

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[2008] ZAWCHC 35
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Danielz N.O v De Wet and Another; De Wet and Danielz N.O and Another (2944/06) [2008] ZAWCHC 35; [2008] 4 All SA 549 (C) 2009 (6) SA 42 (C) (19 June 2008)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 2944/06
In the matter between:
LOUISE
ELLEN DANIELZ N.O.
Applicant
and
PETROLEEN
MAUREEN DE WET 1
st
Respondent
VON
LIERES COOPER BARLOW ATTORNEYS 2
nd
Respondent
And
in the matter between:
PETROLEEN
MAUREEN DE WET Counter Applicant
and
LOUISE
ELLEN DANIELZ N.O. 1
st
Respondent
OLD
MUTUAL LIFE ASSURANCE CO (PTY) LTD 2
nd
Respondent
JUDGMENT
: 19 JUNE 2008
TRAVERSO,
AJP :
[1]
The Applicant in this matter is the nominee of Old Mutual Trust
Limited, the executor of the Estate of the late Deon Ivor De Wet
(“
the
deceased
”).
She applies for a declaratory order that the First Respondent (Mrs.
De Wet) is not entitled to the proceeds of certain life
insurance
policies taken out on the life of the deceased.
[2]
The First Respondent has counter applied for the opposite relief
and has joined Old Mutual Life Assurance Co. (SA) Ltd to the
proceedings.
[3]
The Second Respondent does not oppose the main application and has
not associated itself with the counter application.
[4]
For the sake of convenience I will refer to the parties as the
Applicant, Mrs. De Wet and Old Mutual respectively.
[5]
Mrs. De Wet was married to the deceased in community of property.
[6]
On 4 March 1993 Mrs. De Wet and the deceased executed a joint Will.
Mrs. De Wet was named the heir to the deceased’s share
of the
joint estate. Mrs. De Wet repudiated the joint Will subsequent to her
husband’s death.
[7]
Prior to his death the deceased took out certain life insurance
policies with Old Mutual, the death claim value of which is R1
955
857,15. Mrs. De Wet was the sole nominated beneficiary under these
policies.
[8]
On 6 July 2004 Mrs. De Wet purported to cede to her attorneys, the
Second Respondent, her right, title and interest in and to the
massed
estate and residue in the joint estate of the deceased in security
for payment of professional fees owed by her.
[9]
It is common cause that Mrs. De Wet and an alleged accomplice, one
Ivan Benting
(“Benting”)
were charged with conspiracy, murder, and the unlawful possession of
a firearm and ammunition.
[10]
On 2 September 2004, Selikowitz, J found both the accused guilty on
two counts namely:
(a) Conspiracy
to assault and do grievous bodily harm to the deceased; and
Assault
with the intent to do grievous bodily harm to the deceased.
[11]
Mrs. De Wet accepted the findings of Selikowitz, J, and in fact, in
opposing the relief sought by the applicant in this matter,
she
relied the fact that the Court found that she had not conspired to
murder the deceased and that she could not have foreseen that
her
instructions to assault the deceased could lead to his death.
[12]
Mrs. De Wet does not dispute that the deceased died of the gunshot
wounds inflicted by the persons she hired to assault the deceased.
[13]
In the application between the Applicant and Mrs. De Wet there are
in essence two issues, namely:
Whether
Mrs. De Wet has a claim directly in respect of the proceeds of the
four life insurance policies;
If
not, whether she has a claim under the Will of the deceased, or by
virtue of her interest in the joint estate.
[14]
In the counter application the issues are:
(a) Whether
Mrs. De Wet’s claim against Old Mutual has prescribed.
(b) Whether
Mrs. De Wet is unworthy because the facts show that Selikowitz, J
should have found her guilty of conspiracy to murder
and murder.
[15]
Before I deal with these issues I will consider one of the
arguments put forward by Mr. Brown, who appeared for Mrs. De Wet.
[16]
Mr. Brown argued that the Applicant failed to make out a case in
her founding papers in that the Applicant relied solely upon the
judgment of Selikowitz, J, “
from
which the facts relating to the First Respondent’s involvement are
clear
”.
[17]
With reference,
inter
alia
,
to
Hollington
v. F. Hewthorn Co. Ltd
,
[1943] 2 All ER 35
(CA), he argued that the judgment of Selikowitz, J
is a mere expression of an opinion by him, and accordingly does not
constitute
admissible evidence.
[18]
As a general proposition this argument is sound. However, having
regard to the facts peculiar to this case, the principle in
Hollington
supra
cannot apply. It is correct that a conviction is only proof of the
fact that another Court considered that Mrs. De Wet was guilty
of
conspiring to assault her husband, and no more than that. In this
matter however Mrs. De Wet admits that she conspired to grievously
assault the deceased. In fact in her opposing papers she relies on
the fact that she was found guilty of a lesser crime, for her
contention that she is not unworthy of receiving the benefits of the
various policies.
[19]
Furthermore, in her founding affidavit in the counter application,
she relies in terms on the fact that she was convicted of a
lesser
offence for her contention that she is entitled to the proceeds of
the policies. In her replying affidavit in the counter
application
she states:
“
I admit that I
sought to have my husband assaulted, for the reasons described in my
evidence.”
[20]
She furthermore relies on the reasoning of Selikowitz, J in
concluding that she could not be found guilty of conspiracy to
murder.
[21]
In reality therefore it was never in dispute that Mrs. De Wet was
convicted of conspiracy to assault and do grievous bodily harm
to the
deceased, and it is also not disputed that, though unforeseen, the
deceased died as a result of the assault.
[22]
Although, as a general principle, a counter application stands on
its own and must be decided on its own merits, in this case exactly
the same legal issues are to be determined in the main application as
in the counter application. In addition these issues must
be decided
with reference to the same facts. To adopt an overly technical
approach in a situation such as this, where the relevant
facts are
not in issue, would, in my view lead to an untenable result.
[23]
Against this background the following factual findings were either
common cause or not disputed:
At
some point prior to the deceased’s death Mrs. De Wet and Benting
had agreed that “
they
should teach the deceased a lesson
”.
Mrs. De Wet paid Benting R3 000,00 as a deposit towards this end.
On
25 April 2000 Mrs. De Wet telephoned Benting and suggested that the
time had come to go ahead with their plan to teach the deceased
a
lesson.
They
did not go ahead with the plan and Mrs. De Wet called off the
attack.
On
Thursday, 27 April 2000 there was an attempted assault on the
deceased.
On
28 April 2000 Mrs. De Wet received the money back that she had paid
Benting to procure the assault on the deceased.
On
1 May 2000 there was a further disagreement between the deceased and
Mrs. De Wet, whereupon she decided to re-instate her plan
to teach
him a lesson. She thereupon implemented her plan and paid Benting a
sum of money to arrange the assault.
She
made arrangements with Benting that he should hire two assailants.
She
also agreed that she would leave the front door of the house open to
facilitate the assault on the deceased.
Mrs.
De Wet paid the money to Benting, left the front door open to
facilitate access to the property by the hired assailants, and
furthermore ensured that the live-in domestic help were either in
their bedrooms or in the TV room, so as to be out of the way.
That
night one or more persons arrived at the deceased’s house and shot
him 18 times, killing him.
[24]
On Mrs. De Wet’s own admission, her plan was to assault the
deceased so severely that he would be confined to a wheelchair.
[25]
Selikowitz, J found that it was not possible to draw a conclusion
that Mrs. De Wet intended to kill the deceased, or that it was
expected or foreseen by her that he would die and accordingly the
Court could not find that there was an intention on her part to
murder the deceased. The Court also found that it was proved beyond
a reasonable doubt that Mrs. De Wet and Benting “
together
with one or more other person took the active roles in causing the
assault that led to the death of Mr. De Wet.
”
It is against this factual background that the Applicant seeks the
declaratory relief.
Direct
Claim in respect of the Policies
:
[26]
It is common cause on the papers that the four policies in issue
are insurance policies over the life of the deceased, and that
Mrs.
De Wet was the sole nominated beneficiary under the policies.
[27]
There are two principles of insurance law which come into play
here.
Firstly,
that an assured may not intentionally precipitate the risk insured
against, and in doing so will preclude him/her from
claiming the
benefit of the insurance.
An
assured who intentionally perpetrates a criminal act relating to the
risk insured against, may render himself/herself unworthy,
and in
such an event a Court will not, as a matter of public policy, permit
such a person to claim the benefit under the policy.
The
first principle applies where the assured deliberately causes the
risk. The second applies where some turpitude on the part of
the
assured is so connected with the risk and so repugnant to good
morals, that public policy requires that the assured cannot claim
the
benefit under the policy.
[28]
It is well established that as a matter of general principle, an
offender in our law is not entitled or allowed to derive any benefit
from his own criminal conduct. (See
Parity
Insurance Company Limited v. Marescia & Others
,
1965(3) SA 430 (AD).)
[29]
Accordingly Mr. Butler, who appeared for the Applicant, submitted
that Mrs. De Wet was not entitled to the benefits from the policies,
since the death of the deceased resulted from her illegal or unlawful
activities.
[30]
When the indemnity sought is brought about by a deliberate act of
the insured, the answer is simple. However, where one has to
consider whether the conduct of the insured is so repugnant to the
good morals of society, considerations of public policy come into
play where the answer is not always an easy one, and will depend by
and large on a value judgment of the Court based on the particular
facts of each case. This is demonstrated by the following
dictum
in
Shooter
t/a Shooter’s Fisheries v. Incorporated General Insurances Limited
,
1984(4) SA 264 (D&CLD) at 283 D-I:
“Certainly the
English Courts, both before and subsequent to Beresford’s case
(
which
concerned a claim under a life policy where the insured had committed
suicide
),
did not regard that case as laying down any inviolable rule. Thus,
for example, in manslaughter (or as we call them, culpable homicide)
cases, claims may, and every often do, lie under a policy of
insurance. One need look no further than cases for compensation
where
the negligent or even the reckless driving of an insured causes
the death and a resultant claim is made under a policy such as a
comprehensive motor vehicle. Hundreds of cases under such policies
take place both in South Africa and England where an insured
is
guilty of some driving offence and yet can still claim under a policy
…
The English
cases involving manslaughter are reviewed in the judgment of the
Court of Appeal in case of Gray and Another v. Barr
[1971] 2 All ER
949
, in which Beresford’s case too was considered. At 964, Salmon
LJ said:
‘Although public policy is rightly regarded as an unruly steed
which should be cautiously ridden, I am confident that public
policy
undoubtedly requires that no one who threatens unlawful violence with
a loaded gun should be allowed to enforce a claim for
indemnity
against any liability he may incur as a result of having so acted. I
do not intend to lay down any wider proposition.
In particular, I am
not deciding that a man who has committed manslaughter would, in any
circumstances, be prevented from enforcing
a contract of indemnity
…’
”
[31]
Mr. Butler relied heavily on the reasoning in
Gray
v. Barr
,
[1971] 2 All ER 949
CA to which reference is made in the
Shooter
case
(supra)
.
The facts in
Gray
v. Barr
are instructive. Mr. Gray and Mrs. Barr had an extra-marital affair
with one another. On a particular day Mr. Barr believed his
wife to
be at Mr. Gray’s house. He took his shotgun and entered the front
door of Mr. Gray’s house. Mr. Gray informed Mr. Barr
that his wife
was not there, but Mr. Barr went upstairs and was confronted by Mr.
Gray. Mr. Barr first fired a shot from his shotgun
through the
ceiling of the house, and following a tussle between Mr. Barr and Mr.
Gray, a second shot was discharged, killing Mr.
Gray. The jury found
that the shot might have been an accident and acquitted Mr. Barr.
Mrs. Gray, the widow of Mr. Gray, then sued
Mr. Barr for damages.
Mr. Barr admitted being liable to Mrs. Gray for compensation, but in
turn claimed an indemnity under a “
hearth
and home
”
policy. The insurance company objected to paying the benefits to Mr.
Barr on two grounds, namely:
That
Mr. Barr had caused the event insured against deliberately; and
That
Mr. Barr’s claim was barred by public policy.
Lord
Denning at p. 956g-h said the following:
“
In
the category of manslaughter which is called ‘motor manslaughter’
it is settled beyond question that the insured is entitled
to
recover: … But, in the category which is here in question, it is
different. If his conduct is willful and culpable, he is not
entitled to recover: see Hardy v. Motor Insurers’ Bureau,
[1964] 2
All ER 742.
I agree with the judge when he said:
‘
The
logical test, in my judgment, is whether the person seeking the
indemnity was guilty of deliberate, intentional and lawful violence
or threats of violence. If he was, and death resulted therefrom,
then,
however
unintended
the final death of the victim may have been, the court should not
entertain a claim for indemnity.’
”
(Emphasis supplied)
Salmon,
LJ agreed with the result although he found that Mr. Gray’s death
was an accident. Phillimore, LJ agreed with Lord Denning’s
conclusions. All the judges therefore agreed that a claim was
precluded by public policy. Salmon, LJ concluded at p. 965 d:
“
I am confident
that in any civilised society, public policy requires that anyone who
inflicts injuries in the course of such an act
shall not be allowed
to use the courts of justice for the purpose of enforcing any
contract of indemnity in respect of his liability
in damages for
causing injury by accident.”
[32]
On the strength of the aforegoing, Mr. Butler argued that even
though Mrs. De Wet did not cause the death of the deceased, public
policy should dictate that she be prevented from receiving the
proceeds of the policies.
[33]
This submission is sound. Mrs De Wet conspired to assault the
deceased grievously and she confesses that it was her intention
that
he should be seriously injured. She paid R20 000,00 to procure the
assault which was carefully premeditated. She actively
assisted in
the assault in ensuring that the front door of the house was left
open and that the domestic helpers were not in the
way. The
consequences of her conduct were tragic. The mere fact that she did
not foresee or intend these consequences does not
change this. In my
view the principles of public policy enunciated in
Gray
v. Barr
,
(supra)
should apply equally to the factual scenario presently under
consideration.
[34]
In no civilised society should a person who deliberately and in a
premeditated manner planned and participated in a vicious assault,
which ultimately caused the death of the deceased, benefit from the
consequences of his/her actions – even if those consequences
were
unforeseen.
[35]
I therefore conclude that Mrs. De Wet is not entitled to the
proceeds of the insurances policies.
Can
Mrs. De Wet benefit under the Will
:
[36]
For the reasons set out above Mrs. De Wet is, in my view, unworthy
to inherit any benefit under the Will of the deceased.
[37]
The maxim “
de
bloedige hand en neemt geen erf
”
has been part of our common law since Roman times. Murder was not
the only crime which led to unworthiness. The Roman-Dutch
writers
mention numerous grounds upon which a beneficiary was considered
unworthy to inherit. (See
Ex
Parte Steenkamp & Steenkamp
,
1952(1) SA 744 (T) at 752 G-H.
[38]
Many of the grounds will be obsolete today. To list specific
grounds upon which the Courts would consider a beneficiary unworthy
to inherit would be inappropriate. The grounds are not static and
the common law should be developed to include those grounds that
presently offend the
boni
mores
of society.
Taylor
v. Pim
,
1903 NLR 484
at 492-4, Bale, CJ cites Domat at 493 as saying:
“
The causes which
may render the heir unworthy of the succession are indefinite, and
the discerning of what may or may not be sufficient
to produce this
effect depends on the quality of the facts and circumstances. Thus
we are not to limit these causes to such as shall
be explained in the
following articles, where we have only mention of those which are
expressly named in the laws. But if there
should happen any other
case where good manners and equity should require that an heir should
be declared unworthy, it would be just
to deprive him of the
inheritance.”
The
facts of this case, in my view, leave no doubt that Mrs. De Wet is
unworthy of receiving any benefit under the Will.
[39]
But Mrs. De Wet in any event repudiated the benefits of the joint
Will. So on this ground too she cannot benefit in respect of
the
policies under the Will.
Has
Mrs. De Wet forfeited the benefits of the marriage in community of
property
?
[40]
Mrs. De Wet contends that she has an interest in the policies by
virtue of her right to her half share of the joint estate. Her
contention is that since the proceeds of the policies fall into the
joint estate, and since she has rights in respect of a half share
of
the joint estate, she is
pro
tanto
the holder of rights in respect of the policies.
This
contention cannot be upheld.
[41]
Prior to the death of the deceased, the proceeds of the policies
did not exist or fall into the joint estate. Until the death
of the
deceased there was no certainty that a claim would be made at the
time of his death. He could, for example, have surrendered
the
policies on the day before his death.
[42]
Upon his death the joint estate terminated. This occurs
ex
lege.
(See
Grimbeek
v. The Master
,
1926 CPD 183
at 185;
Joseph
v. Joseph
,
1951(3) SA 776 (N) at 779 G-H;
Hahlo:
Husband and Wife
,
(5
th
Edition) 174 – 176.)
[43]
It is only after the death of the deceased that the rights in
respect of the death benefits arise. The joint estate will therefore
not have a claim to an asset that arose after the joint estate had
been terminated by the death of the deceased.
[44]
From
this it self-evidently follows that Mrs. De Wet will not, by virtue
of her half share in the joint estate, have a claim to the
policies.
[45]
By virtue of the conclusion to which I have come it is not
necessary to consider the alternative argument put forward by Mr.
Butler.
[46]
I turn now to the counter application and the two issues that
emanate thereform, namely:
Whether
Mrs. De Wet’s claim has prescribed; and
Whether
the evidence in the criminal case warranted a finding of conspiracy
to commit murder rather than a conspiracy to assault
the deceased
grievously.
Prescription:
[47]
Mr. Muller, for Old Mutual, submitted that it was common cause that
the benefits under the policy fell due on the death of the
deceased,
namely, May 2000. The counterclaim was only instituted on 3 May
2006. Accordingly it was argued that the Mrs. De Wet’s
claim has
prescribed.
[48]
The
Prescription Act, No. 68 of 1969
applies to insurance contracts
as it does to other contracts.
[49]
In life insurance the event which gives rise to the right to
payment is death during the currency of the policy. The cause and
circumstances of death are generally irrelevant. For though a
murderer (or Mrs. De Wet in the circumstances of this case) can never
benefit from the insurance, the policy itself remains valid and the
insurer is not relieved from liability
vis-a-vis
the deceased’s estate. (See
Davis,
Gordon & Getz, The South African Law of Insurance
,
4
th
Edition at p. 354.)
[50]
Accordingly the contractual event which gave rise to Mrs. De Wet’s
contractual claim against Old Mutual was the death of the
deceased.
[51]
Section 12
of the
Prescription Act provides
:
“
(1)
Subject to the provisions of subsections (2) and (3), prescription
shall commence to run as soon as the debt is due.
(2)
If the debtor willfully prevents the creditor from coming to know of
the existence of the debt, prescription shall not commence
to run
until the creditor becomes aware of the existence of the debt.
(3)
A debt shall not be deemed to be due until the creditor has
knowledge of the identity of the debtor and of the facts from which
the debt arises: Provided that a creditor shall be deemed to have
such knowledge if he could have acquired it by exercising reasonable
care.”
[52]
On behalf of Mrs. De Wet it was argued that the debt was not
payable prior to the conclusion of the criminal proceedings. It was
further argued that because Old Mutual took an attitude that it could
not decide on Mrs. De Wet’s entitlement to the proceeds of
the life
policies prior to the finalisation of the criminal trial,
prescription could only have commenced running on 10 November
2004
when Mrs. De Wet was advised of Old Mutual’s decision not to pay
her out as the beneficiary under the policy.
[53]
But this argument erroneously equates the concept of a contractual
right
to performance, with a delayed
decision
on the part of Old Mutual whether to perform under the contract or
not.
[54]
Mrs. De Wet’s claim is a contractual one. In terms of the
contract the debt became due on the death of the deceased. In terms
of
Section 12(1)
of the
Prescription Act that
will be the date upon
which prescription begins to run. All the
facta
probanda
to succeed in her claim against Old Mutual were known to her at the
time of the deceased’s death, namely:
(a) The
existence of the policies.
(b) Mrs.
De Wet’s nomination as a beneficiary under the policies.
The
death of the deceased.
She
did not have to await Old Mutual’s decision to be able to institute
her claim.
[55]
I therefore find that Mrs. De Wet’s claim against Old Mutual has
prescribed.
[56]
In view of my finding I do not believe that I need consider whether
the facts of the case warranted a finding of conspiracy to
murder.
Prima
facie
this argument appears to be fallacious. It will be wholly
inappropriate for this Court to reconsider the finding of Selikowitz,
J on the strength of certain chosen portions of the record. But this
aspect requires no further discussion.
[57]
In the circumstances I make the following order:
Mrs.
De Wet is not entitled to, and has no claim in respect of, the
proceeds of certain life insurance policies taken out by the
deceased, being the following policies on his life with Old Mutual:
Policy
no. 005995300, in the amount of R104 425,61;
Policy
no. 0012094432, in the amount of R1 503 001,23;
Policy
no. 007312805, in the amount of R205 936,32;
Policy
no. 0010784048, in the amount of R142 494,01.
The
proceeds of the aforesaid life policies taken out by the deceased
do not form part of the joint estate of the deceased and
Mrs. De
Wet.
Mrs.
De Wet is not entitled to inherit from the deceased’s estate.
The
counter application is dismissed with costs.
Mrs.
De Wet is ordered to pay the costs of the application, including
such costs as the Applicant incurred by virtue of the joinder
of
Old Mutual and the subsequent filing of papers.
____________________
TRAVERSO,
AJP
19
JUNE 2008
“
REPORTABLE”
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 2944/06
In the matter between:
LOUISE
ELLEN DANIELZ N.O.
Applicant
and
PETROLEEN
MAUREEN DE WET 1
st
Respondent
VON
LIERES COOPER BARLOW ATTORNEYS 2
nd
Respondent
And
in the matter between:
PETROLEEN
MAUREEN DE WET Counter Applicant
and
LOUISE
ELLEN DANIELZ N.O. 1
st
Respondent
OLD
MUTUAL LIFE ASSURANCE CO (PTY) LTD 2
nd
Respondent
-2-
APPLICATION:
Counsel for the
Applicant : Adv. J. Butler
Attorneys for the
Applicant : C & A Friedlander Inc.
(ref: Mr. F.W.
Muggleston)
Counsel for First
Respondent : Adv. A.D. Brown
Adv. F.A.
Roelofse
Attorneys
for First Respondent : Colin Geoffreys Inc.
(ref:
Mr. C. Geoffreys)
Second
Respondent : Not represented
Attorneys for Second
Respondent : N/A
COUNTER APPLICATION
:
Counsel
for the Applicant : Adv. A.D. Brown
Adv.
F.A. Roelofse
Attorneys for the
Applicant : Colin Geoffreys Inc.
(ref: Mr. C.
Geoffreys)
Counsel
for First Respondent : Adv. J. Butler
Attorneys
for First Respondent : C & A Friedlander Inc.
(ref:
Mr. F.W. Muggleston)
Second
Respondent : Adv. I.J. Muller, SC
Attorneys for Second
Respondent : Walkers Inc.
(ref:
Ms B. van der Vyver)
Date of Hearing
: 15 May 2008
Date of Judgment
: 19 June 2008