Retief and Another v Wessels and Others (603/2007) [2007] ZAFSHC 71 (20 September 2007)

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[2007] ZAFSHC 71
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Retief and Another v Wessels and Others (603/2007) [2007] ZAFSHC 71 (20 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(FREE
STATE PROVINCIAL DIVISION)
Case
No.: 603/2007
In
the matter between:-
MARTHIE
JOHANNA RETIEF
1
st
Applicant
CORNELIS
JANSE RETIEF
2
nd
Applicant
and
ELIZABETH
ANNA WESSELS
1
st
Respondent
ELIZABETH
ANNA WESSELS N.O.
2
nd
Respondent
(In
her capacity as Trustee of the
ELIZABETH
ANNA RETIEF DE JAGER
TRUST
NO: IT 9738/97
ELIZABETH
ANNA DU TOIT N.O.
3
rd
Respondent
(In
her capacity as Trustee of the
ELIZABETH
ANNA RETIEF DE JAGER
TRUST
NO: IT 9738/97)
ELIZABETH
ANNA DU TOIT
4
th
Respondent
BETSIE
DU TOIT
5
th
Respondent
ELSA
DU TOIT
6
th
Respondent
KOTIE
DU TOIT
7
th
Respondent
REGISTRAR
OF DEEDS, PIETERMARITZBURG
8
th
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
9
th
Respondent
MASTER
OF THE HIGH COURT,
10
th
Respondent
BLOEMFONTEIN
CORAM:
H.M.
MUSI, J
­­­­­­­
HEARD
ON:
6
SEPTEMBER 2007
_____________________________________________________
DELIVERED
ON:
20
SEPTEMBER 2007
Summary:
Application
in terms of section 2(1) of the Immovable Property (Removal or
Modification of Restrictions) Act, No. 94 of 1965, for
removal of a
fideicommissum
imposed by will – requirements of – valuations of the property at
time of death of testator and at time of application necessary
in
order to assess whether property has appreciated or depreciated in
value and whether the circumstances that have arisen have actually
materially affected the value of the property.
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, J
[1] This
is an application brought in terms of section 2(1) read with section
(3)(1) of the Immovable Property (Removal or Modification
of
Restrictions) Act, No. 94 of 1965 (the Act) for removal of a
restriction imposed by will on immovable property. It is necessary
to set out the background to the application and same follows.
[2] The
applicants are, in terms of a will executed by their great
grandfather, Cornelis Janse Retief in 1965, the ultimate
beneficiaries
of a
fideicommissum
registered over certain immovable property comprising farms situated
in KwaZulu-Natal and the Free State. The farms involved are
five and
are subdivisions of the farms known as Wagenbietjeskop and Zandspruit
and are the following:
Avondsrust van Union,
also known as Sandspruit No. 1134, Wagensbietjeskop No. 1253,
Klipkloof B van Landbank No. 1253, Klipkloof van
Landbank No. 1253,
all of which are situated in KwaZulu-Natal and the farm Zwartberg No.
498 situated in the district of Harrismith
in the Free State. It is
unnecessary for reasons that will emerge shortly to give details of
the registration particulars of the
farms. I shall refer to the
farms collectively as the property or simply the farms.
[3] After
the death of the applicants’ great grandfather the property passed
on to his son, the applicants’ grandfather, also
named Cornelis
Janse Retief. When their grandfather passed away in 1978, the
property passed on to their father also named Cornelis
Janse Retief,
but still subject to the
fideicommissum
.
The applicants’ father became the fiduciary. In 1988 the
applicants’ father became insolvent and his estate was
sequestrated.
His fiduciary interest in the farms was sold in a
public auction and the first respondent, who is the mother of the
applicants’
father, purchased the said interest in the farms and
they were transferred to her. The first respondent still holds the
property
in the place of the fiduciary aforesaid. The purchase was,
however, subject to the
fideicommissum
which still remains registered over the property.
[4] The
first respondent is also a trustee of a trust called Elizabeth Anna
Retief de Jager Trust and she is cited as the 2
nd
respondent in her capacity as such. The third respondent is the
sister of the applicants’ father and is also a trustee of the
Elizabeth Anna Retief de Jager Trust. She is cited as 3
rd
respondent in her capacity as such. She is also cited in her
personal capacity as 4
th
respondent. The 5
th
,
6
th
and 7
th
respondents are the children of the 3
rd
respondent and have been joined in these proceedings by virtue of
their interests as beneficiaries of the Elizabeth Anna Retief de
Jager Trust. The 8
th
and 9
th
respondents are the Registrars of Deeds for Pietermaritzburg and
Bloemfontein, respectively, and no order is sought against them.
The
10
th
respondent is the Master of the High Court, Bloemfontein, and no
order is sought against him.
[5] I
should mention that the interest of the Elizabeth Anna Retief de
Jager Trust in this matter lies therein that the relevant farms
have
been let out and the trust is the lessor in the relevant lease
agreements. In their papers, the applicants query this and begrudge
the fact that their father’s sister and her children share in the
income derived from the lease whereas they get nothing. There
is no
merit in the complaint. If the first respondent is entitled to let
the farms, as she clearly is, she surely can do that through
the
agency of her trust and she is free to do whatever she wants with the
income, including giving it to some of her children and
grandchildren.
[6] I
now turn to consider the real issues. The applicants seek to have
the
fideicommissum
cancelled and the property transferred to them. They are supported
by their father. The application is opposed by the 1
st
,
2
nd
,
3
rd
,
4
th
,
5
th
,
6
th
and 7
th
respondents. It is worth noting at the outset that it is a rule of
the common law that the estate of a testator/testatrix should
be
administered in terms of his/her will and that all restrictions that
the testator/testatrix has imposed should be given effect
to. The
provision of section (2)(1) of the Act constitutes an inroad into
this rule. See
EX
PARTE COETZEE
1949 (2) SA 533
(OPD) at 538 to 539 and the authorities cited there.
That means that a party seeking to upset the scheme devised by the
testator/testatrix
by having recourse to this statutory provision,
must bring his/her application squarely within the terms of the
statute.
[7] Section
2(1) of the Act enables a beneficiary with any interest in the
immovable property which is subject to a restriction to
approach the
court for the removal or modification of the restriction on the
ground that this will be to his/her advantage. Section
3(1) on the
other hand, stipulates what is required to be shown to enable the
court to grant the order sought. The requirements
that are
applicable in this case are those contained in subsection (c) and
subsection (d) of section 3(1) and it is apposite to reproduce
them:
“
(c) that since the taking effect of
the will or other instrument imposing any restriction upon the
immovable property concerned circumstances
materially affecting the
value of the property have arisen which in the opinion of the court
were not contemplated or foreseen by
the person who made and executed
the will or instrument; or
(d) that it
will be in the public interest or in the interests of the persons
referred to in subsection (1) of section two,
to do so.”
[8] For
the proposition that the removal will be in their interests as
beneficiaries, the applicants give essentially two reasons.
Firstly,
they rely on the averment that the farms are not being properly
looked after and are depreciating in value. They reason
that the
only way of halting the deterioration is by transferring the farms to
them and say that they will be better placed to properly
care for the
farms and to put them to proper use. The second reason is that the
first respondent is a wealthy person who does not
need the income
derived from the farms and that she has already made more than enough
money out of the property than the R410 000.00
with which she bought
their father’s interest in the property. They bemoan the fact that
people who have no interest in the property
are deriving benefit
therefrom whereas they get nothing. They aver that it is in the
public interest that this state of affairs
be terminated.
[9] In
my view, none of the above factors provide sufficient basis for
holding that the removal will be in the interests of the applicants.

The allegation that the farms are neglected and are depreciating in
value is a factor that falls to be considered under the requirement
of subsection (c) which will be dealt with in due course. The fact
that the 1
st
respondent is wealthy and does not need the income derived from the
farms, is irrelevant and so is the fact that the applicants may
be
better placed to look after the farms and put them to proper use. If
these were relevant considerations very few
fideicommissaries
would await the happening of the event that would entitle them to get
ownership of property subject to a
fideicommissum
.
Nor can it be in the public interest to prematurely terminate the
rights of a fiduciary at the whim of the
fideicommissaries
.
It should be remembered that the rights of the fiduciary, the
applicants’ father, now vest in the first respondent. As such,
the
first respondent has
dominium
and is entitled to the benefits accruing therefrom for as long as the
event that would trigger termination of the
fideicommissum
has not come to pass; that is, the death of the nominated fiduciary.
The applicants have not shown why their interests should take
precedence over those of the first respondent.
[10] The main ground upon
which the application was argued is that the property is being
neglected and is depreciating in value as
a result. The basis of
this submission is to be found in paragraphs 24, 25 and 26 of the
founding affidavit. Therein the applicants
allege that the farms
have been let for the past 18 years and that the lessors have never
resided thereon with the result that the
homestead on Avondsrust has
for the past 18 years been unoccupied and not maintained. In their
replying affidavit the applicants
annex photographs of the buildings
from which it can be seen that parts of the buildings are in a poor
state. The photographs also
show loose wires on some of the fences.
In a nutshell, the applicants’ contention that the property is
neglected and is depreciating
in value is based primarily on the poor
state of the homestead and parts of the fencing. The applicants
point out that their father
used to reside on one of the farms,
cultivated the lands and generally properly looked after the
property. This, they say, is what
the testator had contemplated and
not the current state of affairs.
[11] For
the proposition that the value of the property is being materially
affected, the applicants annexed to their replying affidavit
a sworn
valuation of the property compiled by Mr. J.W. Wright on 20 March
1986 showing the total value to be R1 128 000,15. They
also annexed
an affidavit by Mr. I.J.S. Van der Linde, who says that he visited
the property on 1 April 2007 and found that the improvements
outlined
in paragraph 10 of the 1986 valuation report have been extensively
damaged and that such improvements are in a state of
disrepair. He
propoffers the view that it will cost hundreds of thousands of rands
to restore the improvements.
[12] The
respondents vehemently dispute that the property is being neglected
or that it is deteriorating in value. They say that
from 1988 to
August 2003 the farms were let as a unit to Mr. P.T. de Jager,
popularly known as Flip de Jager, who is an outstanding
and reputable
farmer and that the latter conducted extensive farming operations of
the highest order on the farms and kept them in
an excellent
condition. From the 1
st
September 2003 the farms have been hired by the brothers Wessel and
Gert Campher both of whom are outstanding farmers. They both
use the
farms for stock farming and are said to be diligently looking after
them. Some of the farms are used for winter grazing
only, which mean
that the lands become regularly rehabilitated, so the respondents
allege.
[13] The respondents
acknowledge that the buildings on the property have indeed been
vandalised and are in a state of disrepair.
They, however, attribute
this partly to the fact that the buildings were already old anyway
and partly because the applicants’
father, who had been allowed to
occupy the homestead after being declared insolvent, had abandoned
it.
[14] The
difficulty for the applicants is that these are motion proceedings
and insofar as there are disputes of fact which cannot
be resolved on
the papers, the rule in
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) applies. Save for the state of the buildings
making up the homestead and the fact that the farms are leased, the
versions of
the parties are diametrically opposed. Therefore the
version of the respondents prevails. Even accepting that the
buildings have
been seriously damaged and would need substantial
funds to restore, that alone does not prove that the value of the
property has
depreciated or is depreciating, taking into account that
such buildings are situated on only one of the five farms. On this
basis
alone the application stands to fail.
[15] But
there are other weighty reasons why the application cannot succeed.
In their book
The
Law of Succession in South Africa
,
2
nd
Edition, Corbett, Hofmeyr and Kahn states the following at p. 303 to
304:
“
In
order to determine whether the value of the property has been
materially affected, the court must have before it information
as
to its value as at the date of the taking effect of the will
.
This same point of time – and not the date of execution of the
will – is critical in deciding whether or not the circumstances
relied upon were contemplated or foreseen by the testator, for the
legislature clearly intended that the court should have regard
to
what the testator foresaw or contemplated between the date of
execution of the will and the date of death. The circumstances
relied upon must not be circumstances brought about by the
beneficiaries themselves but must be circumstances arising from
events
over which they have no control. Moreover, the circumstances
must
actually
affect the value of the property by causing either a material
appreciation or a material depreciation of its value.”
(My
emphasis.)
The
learned authors cite case law authority in this regard.
[16] The
first obstacle in the way of the applicants is that valuation of the
property as at the time that the testator’s will took
effect, being
the time of his death, has not been furnished. There is not even an
indication of when the applicants’ great grandfather
died. At the
very least a valuation of the property as at the time of the death of
their grandfather in 1978 should have been furnished.
Moreover,
there is no indication of the purpose of the valuation done by Mr.
Wright in 1986 and it does not seem to relate to the
administration
of the estate of either the applicants’ great grandfather or their
grandfather. There is accordingly no information
on which it can be
assessed whether the value of the property has appreciated or
depreciated since the execution of the will took
effect. Nor is it
possible to assess whether the prevailing circumstances would have
been foreseen between the time of execution
of the will and the death
of the testators. Most importantly, the current value of the
property has not been furnished and it is
not known whether the
property has appreciated or depreciated since the last valuation of
1986. See
EX
PARTE PAIDAS, NO
1965 (1) SA 52
(WLD) at 57 D - F. Moreover, the fact that a farm is
not being cultivated or that the building thereon has been vandalised
does
not necessarily mean that its overall value has depreciated. So
is the fact that some wires on a farm fence are loose. On the other
hand, we have evidence that some of the farms are allowed space to
rehabilitate. That would obviously enhance their grazing value.
[17] Now,
counsel for both parties were not able to provide me with any
reported case with similar facts. The only case I could lay
my hands
on whose facts are the closest to those of the instant case is
EX
PARTE STRANACK
1974 (2) SA 692
(DNCLD). It is, however, clearly distinguishable.
In that case the wife of the testator, who had remained on the farm
after the
death of her husband (the testator), was murdered on the
farm. The property was subject to a
fideicommissum
.
The only surviving beneficiary of the testator who assumed the
position of fiduciary was not prepared to live on the farm due to
the
murder aforesaid and had emigrated. The property was abandoned and
left in a derelict state. The homestead thereon was vandalised.
On
the application of the surviving beneficiary, not being the ultimate
fideicommissary
,
it was held that the murder of the testator’s wife contributed to
the abandonment of the property with the resultant depreciation
in
its value. It was held that these are circumstances that materially
affected the value of the property and they could not have
been
contemplated by the testator.
[18] It
will be noted that the circumstances sketched above had been beyond
the control of the beneficiaries and also a valuation
of the property
obtained during the administration of the estate of the testator had
been furnished.
In
casu
,
the current state of affairs can be attributed to the conduct
(insolvency) of a beneficiary, being the applicants’ father.
[19] In the premises the
application is dismissed. The applicants are to pay the costs of
suit jointly and severally, the one paying
the other to be absolved.
___________
H.M.
MUSI, J
On
behalf of the applicants: Mr. N.C. Oosthuizen
Instructed
by:
E
G Cooper Attorneys
BLOEMFONTEIN
On
behalf of 1
st
to 7
th
respondents: Adv. J.P. de Bruin SC
Instructed
by:
Hill McHardy &
Herbst Inc
BLOEMFONTEIN
ec/sp