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2024
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[2024] ZAFSHC 238
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Van Zyl v Master of the High Court (Bloemfontein) and Others (5501/2021) [2024] ZAFSHC 238 (5 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 5501/2021
In
the application between:
ELAINE
VAN ZYL
Applicant
and
MASTER
OF THE HIGH COURT (BLOEMFONTEIN)
1
st
Respondent
DANE
ANDREA VAN ZYL
2
nd
Respondent
LISA
DOCHERTY
3
rd
Respondent
SANLAM
TRUST (PTY) LTD
4
th
Respondent
ANDREW
EDWARD LORENTZ
5th
Respondent
PIERRE
ULRICH VOS N.O.
6
th
Respondent
And
in the rescission application between:
DANE
ANDREA VAN ZYL
1
st
Applicant
LISA
DOCHERTY
2
nd
Applicant
and
ELAINE
VAN ZYL
1
st
Respondent
SANLAM
TRUST (PTY) LTD
2
nd
Respondent
ANDREW
EDWARD LORENTZ
3
rd
Respondent
PIERRE
ULRICH VOS N.O.
4
th
Respondent
MASTER
OF THE HIGH COURT (BLOEMFONTEIN)
5
th
Respondent
HERMANUS
STEYN BADENHORST N.O.
6
th
Respondent
NOORDMANS
ATTORNEYS
7
th
Respondent
KRUGER
VENTER INCORPORATED
8
th
Respondent
JEAN
RAYMOND CASTRO N.O.
9
th
Respondent
PIET
HAASBROEK ATTORNEYS
10
th
Respondent
LEGAL
PRACTICE COUNCIL, FREE STATE
PROVINCIAL
OFFICE
11
th
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
7
MARCH 2024
DELIVERED
ON:
5
AUGUST 2024
[1]
In terms of the Notice of Motion the applicant is seeking the
following relief:
“
1.
That a Rule
Nisi
be hereby issue calling on the respondent to
show cause, if any, to this Honourable Court … why an Order
should not be granted
in the following terms:
1.1
That the Fifth-, Sixth-, Seventh-, Eighth-, Ninth-, Tenth-, and
Eleventh Respondents are joined to this
application as Respondents;
1.2
That the Fifth-, Sixth-, Seventh-, Ninth- and Tenth Respondents be
interdicted from winding up the estate
of the late Daniel Johannes
van Zyl …
1.3
That the Sixth-, Seventh-, Eighth-, Ninth-, and Tenth Respondents
render an account of all expenses
incurred up to date in relation to
the winding up of the estate of the late Daniel Johannes van Zyl;
1.4
That the Court Order under case number 5501/2021, granted by the
Honourable Acting Judge Mpama, out
of this Honourable Court on 23
November 2022 be set aside;
1.5
Alternatively to 1.4 above, that the Court Order under case number
5501/2021, granted by the Honourable
Acting Judge Mpama, out of this
Honourable Court on 23 November 2022 be rescinded;
1.6
That those Respondents who oppose this application, be directed to
pay the costs of this application
only in the event of their
opposition, jointly and severally”.
2.
That the relief sought in paragraph 1.2 above shall operate as an
interim Order with
immediate effect, pending the final determination
of this application;
3.
That the applicant be granted such further and/or alternative relief
as this Honourable Court
deems meet.
The
parties:
[2]
The first applicant, Dane Andrea van Zyl, is the daughter of Daniel
Johannes van Zyl (“the deceased”).
I will refer to
her as “Dane”.
[3]
The second applicant, Lisa Docherty, is the biological sister of the
deceased. She has been nominated as the
co-executor with Sanlam in
terms of the 2014 Will, which Will I will deal with later herein. I
will refer to her as “Lisa”.
[4]
The first respondent, Elaine van Zyl, is the surviving spouse of the
deceased. I will refer to her as
“Elaine”.
[5]
The second respondent, Sanlam Trust (Pty) Ltd, has been nominated as
co-executor and co-trustee in terms of
the 2014 Will to which I will
refer later herein. I will refer to this entity as “Sanlam”.
[6]
The third respondent, Andrew Edward Lorentz, is the brother of the
deceased. He has been nominated as the
co-trustee with Sanlam in
terms of the 2014 Will. I will refer to him as “Lorentz”.
[7]
The fourth respondent, Pierre Ulrich Vos N.O. is the duly appointed
interim curator of the deceased’s
estate in terms of a Court
Order granted on 10 September 2021, under case number 4035/2021.
I will refer to him as “Vos”.
[8]
The fifth respondent is the Master of the High Court, Bloemfontein to
whom I will refer as “the Master”.
[9]
The sixth respondent, Hermanus Steyn Badenhorst N.O., is an attorney
who is the co-executor of the deceased’s
estate in terms of a
Court Order granted on 23 November 2022, under case number 5501/2021
(“the November 2022 Order”).
At the time of the
granting of the November 2022 Order Badenhorst was Dane’s
attorney of record. I will refer to him
as “Badenhorst”.
[10]
The seventh respondent, Noordmans Attorneys, are the attorneys of
record for Elaine and the correspondent attorneys of
Roma Badenhorst
Attorneys. I will refer to the firm as “Noordmans”.
[11]
The eighth respondent, Kruger Venter Incorporated, is a firm of
attorneys who represented Dane throughout this matter,
until she
formally terminated their mandate on 10 May 2023. I will refer
to them as either “Kruger Venter” or
(Mr) “Kruger”,
depending on the context.
[12]
The ninth respondent, Jean Raymond Castro N.O., practices as an
attorney at the firm of Piet Haasbroek Attorneys.
He is cited
in his capacity as the co-executor of the deceased’s estate in
terms of the November 2022 Order. I will
refer to him as
“Castro”.
[13]
The tenth respondent, Piet Haasbroek Attorneys, is a firm of
attorneys situated in Welkom. I will refer to the firm as
“Piet
Haasbroek Attorneys”.
[14]
The eleventh respondent is the Legal Practice Council, Free State
Provincial Office, to whom I will refer as “the
LPC”.
[15]
I mean no disrespect by referring to the parties as set out above. It
is merely done for the sake of brevity and clarity.
[15]
The sixth, seventh, eighth, ninth, tenth and eleventh respondents are
all new parties to this application and are cited
by virtue of their
direct and substantial interest in the application.
Background:
[16]
The deceased signed and executed a valid Will on 17 December 2014
(“the 2014 Will) and which made provision for,
inter alia
,
the following: (i) all previous Wills were revoked; (ii) his entire
estate was made over to Dane as sole heir. However,
until she
reached the age of 25, such benefit was to be held in trust; (iii)
Sanlam and Lisa were nominated as co-executors while
Sanlam and
Lorentz were nominated as co-trustees of the trust to be created in
terms of the said Will.
[17]
Elaine and the deceased got married on 5 October 2019.
[18]
Elaine contends that the deceased subsequently drafted four further
Wills, each one revoking the previous one, and with
the final one,
hence the fifth Will, dated 5 January 2021 (“the 2021 Will”)
being the Last and final Will upon which
Elaine relies and which she
claims revoked the 2014 Will.
[19]
The 2021 Will provides,
inter alia
, for the following: (i) it
was declared by the deceased to be his last Will and Testament; (ii)
the deceased revoked all previous
Wills made by him, hence (also) the
2014 Will; (iii) the deceased nominated and appointed Elaine as
executrix and sole beneficiary/heir
of his entire estate; (iv) the
deceased made over to Elaine the immovable property as well as both
close corporations and all their
stock and assets; and (v) the
remainder of the deceased’s estate was made over to Elaine as
sole heir/legatee.
[20]
None of the subsequent four Wills, including the 2021 Will, were
validly executed in accordance with the validity formalities
prescribed by the Wills Act, 7 of 1953 (“the Will`s Act”).
[21]
Elaine subsequently launched the main application, seeking the
following relief:
1.
That it be declared that the 2014 Will of the deceased is revoked in
terms of
Section 2A(c)
of the
Wills Act.
2.
That
the Master be ordered to accept the 2021 Will as the Will of the
deceased for purposes of the
Administration of Estates Act, 66 of
1965
and that the estate of the deceased be administered and wound up
in terms thereof as contemplated by
Section 2(3)
of the
Wills Act.
3.
That the costs of the main application be paid by the deceased
estate, unless
any of the respondents therein oppose the main
application.
[22]
The main application was opposed.
[23]
The thrust of the main application was eventually narrowed down to
the question of authentication of the signatures on
the 2021 Will.
Both Dane and Elaine obtained expert opinions from respective
handwriting analysts. On 25 July 2022,
Daniso, J issued an
order by agreement between the parties directing that the application
be referred for oral evidence to be heard
on 22, 23 and 24 November
2022.
[24]
The aforesaid order of 25 July 2022 directed that the evidence to be
heard be limited to that of the handwriting experts
of both sides.
The court further directed that should the court find in favour of
Elaine and determine the fifth Will to
be valid, she will be entitled
to the relief she seeks in the main application. However,
should the court find against Elaine,
then her application to declare
the fifth Will valid shall be dismissed.
[25]
On 22 November 2022, just before the main application was to be
called for the hearing of oral evidence, counsel for
both parties
went to the chambers of Mpama, AJ to introduce themselves. Due
to the absence of a proper joint minute/report
of the experts, Mpama,
AJ directed that the proceedings stand down to allow the experts of
both parties to hold a joint meeting
and bring forth a joint expert
minute/report.
[26]
Both experts subsequently went to the boardroom of Noordmans where
they sat together for the entire day and only on the
following day,
23 November 2022, were they able to bring out a joint expert report.
[27]
Badenhorst arrived back at the offices of Noordmans at approximately
12h30 on 23 November 2022 as he was at the offices
of Kruger Venter
and advised that, subject to the approval of Elaine, he and Kruger
Venter (per Kruger) settled the main application.
[28]
On 22 November 2022 extensive negotiations took place between the
respective attorneys, which process continued on 23
November 2022 and
eventually a draft order was presented to Mpama, J on 23 November
2022, and Mpama, AJ was requested to make it
an order of court,
allegedly by agreement between the parties. It is this order,
the November 2022 Order) which forms the
subject matter of this
application.
[29]
The aforesaid order reads as follows:
“
1.
The Last Will and Testament of the deceased … dated 17
December 2014, is hereby revoked.
2.
The Third Respondent is herewith discharged from the office of
executrix in the estate of
the late Daniel Johannes van Zyl …
3.
As executors of the estate of the deceased, the First Respondent
shall appoint Hermanus Steyn
Badenhorst of Roma Badenhorst Attorneys,
Virginia, and Jean Raymond Castro of Piet Haasbroek Attorneys,
Welkom, as co-executors
of the estate of the deceased. The said
executors shall not be required to provide any security in respect of
the said appointment
to the First Respondent.
4.
The estate of the late Daniel Johannes van Zyl … shall be
administered as follows:
4.1
The Applicant shall be entitled to 50% of the proceeds of the estate
after the estate administration
costs and expenses have been
accounted for; and
4.2
The Second Respondent shall be entitled to 50% of the proceeds of the
estate after the estate administration
costs and expenses have been
accounted for.
5.
The Applicant and the Second Respondent waive their respective rights
in respect of their
respective maintenance claims against the estate
of the deceased.
6.
Each party shall be liable for their own legal costs incurred towards
their respective legal
representatives.”
(The
aforesaid references to the respective parties should be read and
understood as cited in the main application.)
Dane’s
version:
[30]
According to Dane, after the court directed that a joint minute
should be drafted by the experts, a series of meetings
followed
wherein she kept being asked to agree to things which were not
acceptable to her, namely that she should share the estate
with
Elaine.
[31]
Dane states as follows at paragraphs 1.34 and 1.35 of the founding
affidavit:
“
1.34
I can only describe the meetings as acrimonious and as I did not
fully understand what was going on, I can state categorically
that
I
did not agree to anything in writing
and I understood that
everything I did had to be agreed in writing. (My emphasis)
1.35
I refer to the meetings as they continued throughout the day and, at
one stage, I, in fact, left the meetings as
I was feeling unduly
pressured by Badenhorst and KVI [Kruger] to accept something I was
not comfortable with.”
[32]
At the end of the day Dane was advised that a copy of an agreement
would be sent to her which would settle the matter.
She
consequently received a document, a copy whereof is attached to the
founding affidavit as annexure “DZ3”, the so-called
redistribution agreement. According to Dane this document was
never agreed to or signed by her.
[33]
On 2 December 2022, Kruger informed her that a Consent Order was
taken on 23 November 2022, granted by Mpama, AJ.
A copy of the
November 2022 Order is attached to the founding affidavit as annexure
“DZ1”.
[34]
Dane continues by stating as follows at paragraphs 1.40 and 1.41 of
the founding affidavit:
“
1.40
I was not present at Court on the date that the November 2022 Order
was taken, and
at no time did I consent to this Order being taken
.
(My emphasis)
1.41
The November 2022 Order was taken despite my instructions that the
matter must proceed on the evidence of the handwriting
experts, as I
maintained the view that the subsequent four Wills were not drafted
by my late father, and that it was never his
intention to exclude me
from benefitting from his estate.”
[35]
According to Dane, several communications followed, both telephonic
and e-mail, in which Dane (and Lisa) informed Kruger
that she (they)
never gave him instructions to settle on the said terms. Dane
refers to annexure “DZ4” attached
to the founding
affidavit, being an e-mail she sent to Kruger, in which Lisa was
copied, on 3 May 2023, wherein she again brought
it to his attention
that the November 2022 Order was not what she agreed to. In the
e-mail she also gave Kruger instructions
to rescind the November 2022
Order on the basis of “
iustus error
”. Dane
explains as follows at paragraph 1.45 of the founding affidavit:
“…
My
basis for contending this is that the Court was under the mistaken
impression that the attending parties, first of all, had the
mandate
to reach that agreement and, secondly, that the November 2022 Order
is in fact a competent order for the Court to make.”
[36]
Dane points out that in terms of the 2014 Will the assets of the
estate vests in the trustees of the trust until she
reaches the age
of 25 years old. Therefore, the trustees ought to have been
consulted and ought to have given their consent
to any order dealing
with the assets of the estate. They never formed part of the
discussions when the matter was purportedly
settled and the order was
taken by, purportedly, consent on 23 November 2022.
[37]
The further ground on which Dane avers that the November 2022 order
should be set aside, other than being in conflict
with her express
instructions, is that it was not competent for the Court to have
granted the order and that the order is unlawful.
In this
regard she refers to the fact that
Section 2A
of the
Wills Act makes
provision that a court must be satisfied that a testator has intended
to revoke his Will. No evidence was presented, in the
form of
handwriting experts, upon which the court could have based an
independent decision as to the testator’s true intention.
This power, according to Dane, vests in the court and not in the
parties.
[38]
Another reason why Dane avers that the order is not competent, is
that it removes Lisa as executrix and appoints Badenhorst
and Castro
as executors, which are powers reserved for the Master to exercise.
The court cannot override that power conferred on
the Master.
[39]
Dane further avers that should she ultimately be successful in this
application, any action taken by the current executors,
Badenhorst
and Castro as regards any curtailing of the business of the estate or
distribution thereof, will ultimately prejudice
her in creating
losses which will largely be irrecoverable. She therefore
submits that pending the outcome of the application
as regards the
rescission contemplated herein, the said Badenhorst and Castro should
be interdicted and restrained from continuing
with the administration
of the estate.
The
version of Elaine, Badenhorst and Noordmans:
[40]
Elaine explains in paragraph 76.4 of the answering affidavit that
while the experts were busy conducting their joint
meeting on 22
November 2022, Kruger as well as Castro were also at the offices of
Noordmans. She then further states as follows:
“
I
was also present and during the course of the day, both Lisa and Dane
were also present. However, neither I, nor Lisa and
Dane were
personally present when the attorneys for both factions negotiated a
possible settlement. What therefore happened,
was that
Badenhorst would make a proposal to Mr Kruger which Mr Kruger would
then discuss with Dane and Lisa and he would then
come back
indicating that such proposal was not acceptable and making
counter-proposals to Badenhorst which Badenhorst would again
take up
with me. This process was followed the entire day.
However, I need to mention that I did leave the premises
of Noordmans
and so too, Dane and Lisa. However, the above process was
followed on
mutatis mutandis
basis in the sense that either
Badenhorst would make a proposal to Kruger Venter, which Kruger
Venter would then telephonically
take up with either Dane or Lisa and
upon receiving instructions, he would inform Badenhorst thereof and
Badenhorst will then contact
me and inform me thereof. I would
then provide my instructions to Badenhorst whereafter he would take
same up again with
Kruger Venter. This to and fro continued
throughout the day as already indicated and ultimately, by close of
business on 22 November
2022, the main application was still not
settled.”
[41]
On 23 November 2022 Elaine again attended the offices of Noordmans.
At that stage Badenhorst attended the offices
of Kruger Venter.
She then states at paragraphs 77.3 and 77.4 of the answering
affidavit as follows:
“
77.3
Badenhorst informed me that when he was at the offices of Kruger
Venter, that he and Kruger Venter (per Mr Kruger) negotiated
further
in an attempt to settle the main application. This occurred
while both Dane and Lisa were in the offices of Kruger
Venter
[although not in the personal office of Mr Kruger himself].
Eventually, Badenhorst made a proposal to Mr Kruger in
the form of
the draft order that was made an order of court as appears from
Annexure “DZ1” to the rescission application.
At
that stage, Mr Kruger called in both Dane and Lisa and conveyed to
them [in a private consultation room whilst Badenhorst was
still at
the offices of Kruger Venter] the proposal that was made by
Badenhorst. After such proposal was conveyed to them
by Mr
Kruger, they agreed thereto whereupon Badenhorst informed Mr Kruger
that he will take such proposal to myself and upon me
agreeing that
he will prepare a draft order and mail same to Kruger Venter (per Mr
Kruger). Badenhorst then left the offices of
Kruger Venter and
proceeded to the offices of Noordmans.
77.4
Upon Badenhorst returning to the offices of Noordmans, the proposal
[in the form as that contained in Annexure
“DZ1” to the
rescission application] was conveyed to me whereupon I agreed
thereto. Badenhorst then typed the
draft order …”
[42]
The typed draft order was e-mailed to Kruger Venter, whereupon Kruger
phoned Badenhorst and confirmed that the proposed
draft order is in
order and may be made an order of court. At approximately 15h00
the afternoon of 23 November 2022 Elaine’s
counsel and the
representative of Kruger Venter attended to court and obtained the
November 2022 Order.
The
joinder of the fifth to eleventh respondents:
[43]
In my view the requested joinder should be granted, as it is evident
that the relevant parties have a direct and substantial
interest in
the application. This will, however, exclude the fifth
respondent, the Master, since the Master was already a
party to the
main application.
[44]
Noordmans raised a special plea or point
in liminé
with
regard to the misjoinder of Noordmans, on the basis that Noordmans
has no direct and substantial interest in the subject matter
in any
of the relief sought in the rescission application. In this
regard it was pointed out that Noordmans was merely the
correspondent
attorney of Badenhorst and only became the attorney of record for
Elaine on 5 June 2023.
[45]
For reasons that will become evident later in this judgment, the
alleged misjoinder-issue of Noordmans will be academic
and need not
be adjudicated upon.
Condonation
for the late filing of the answering affidavit:
[46]
After having considered the condonation application, I am satisfied
that Elaine, Badenhorst and Noordmans have shown
good cause for me to
grant condonation for the late filing of the answering affidavit.
[47]
With regard to the costs of the condonation application, it is in my
view evident that the circumstances which led to
the late filing of
the condonation application, although duly explained and reasonable,
were present on the side of Elaine, Badenhorst
and Noordmans.
Dane and Lisa cannot be held responsible for the circumstances
explained in the condonation application.
[48]
I am consequently of the view that the costs of the condonation
application should be paid by Elaine and Badenhorst jointly
and
severally, payment by the one the other to be absolved. It would, in
my view, not be fair and reasonable to also order such
costs to be
paid by Noordmans jointly and severally, since they were only the
correspondent attorney at the time.
Grounds
for rescission other than the lack of authority/consent:
[49]
The grounds for rescission raised in the founding affidavit, other
than the lack of authority and/or the allegation that
Dane did not
agree to the November 2022 Order, are grounds upon which Dane and
Lisa rely to aver that the November 2022 Order is
unlawful and not
competent for the reasons raised in the founding affidavit. In
this regard it is their case that it was
not competent for the court
to have made the November 2022 Order an order of court; hence, that
the court erred due to the reasons
in the founding affidavit.
[50]
In my view those grounds raised in the founding affidavit cannot
serve as grounds for purposes of a rescission application.
Insofar as Dane and Lisa aver that the court erred in those respects,
their remedy would be/would have been to appeal those findings.
I cannot sit as a court of appeal determining whether the court erred
in those respects or not. Mr Reinders, on behalf of
Dane and
Lisa, duly conceded accordingly.
The
merits:
[51]
Mr Meintjies, on behalf of Elaine, Badenhorst and Noordmans, raised
three main arguments on the basis of which he submitted
that the
order should not be set aside/rescinded. In this regard he
dealt with the evidence and the legal principles of actual
authority,
ostensible authority (and estoppel) and peremption (i.e.
acquiescence).
[52]
In my view it is apposite to first consider the evidence presented by
Dane and Lisa themselves in respect of the issue
regarding consent
pertaining to the November 2022 Order.
[53]
As already mentioned earlier, it is Dane’s case in the founding
affidavit that she was not present at court on
the date that the
November 2022 Order was taken, she
did not consent to the order
being taken and she gave instructions to Kruger that the matter must
proceed on the evidence of the handwriting experts.
[54]
On 8 December 2022 Sanlam sent an e-mail to Kruger and Lisa
referencing a letter which Dane sent to Sanlam where she
intimated
that “
she was
coerced into accepting
the points in the draft order. She was not explained anything
or even explained the implications relating to this order
”.
This e-mail is attached to the founding affidavit as annexure “DZ.6”.
[55]
In an e-mail dated 3 May 2023 from Dane addressed to Kruger, in which
Lisa was also copied, attached to the founding
affidavit as annexure
“DZ.4”, Dane stated as follows:
“
Die
hof bevel in sy huidige vorm is nie waaroor ons ooreengekom het nie.
Inteendeel ons het oor en oor gese dat ons wil he
die saak moet voort
gaan.
Dit is slegs nadat jy herhaaldelik gese het ons moet
dit doen.
Soos
jy weet het ons slegs die hof bevel 2 weke na die uitreiking gesien
ten spyte dat ons herhaaldelik gevra het. Ons het
onmiddelik
ons teenkanting vir jou gegee toe ons dit sien
omdat dit NIE was
waaroor ons ooreengekom het nie en jyself het ook so erken.
Op
grond van die voorgenoemde is dit ons versoek (en instruksies) dat
die hof genader word en vra dat hierdie hof bevel terug getrek
word
op grond van ‘iustus error’. …” [
sic
]
(My emphasis)
[56]
In an e-mail from Dane addressed to Castro, in which Lisa was again
copied, dated 4 May 2023, attached to the answering
affidavit as
annexure “X108”, Dane
inter alia
, stated as
follows:
“
Soos
jy weet, stem ons nie saam met die hof bevel nie
aangesien dit nie
was waaroor ons ooreengekom het nie
. Ons het alreeds die
punt aan ons regsverteenwoordiger genoem en ook instruksie gegee
insake die verband en wag vir sy terugvoering.
Dit sal
onverskuldig wees van my om voort te gaan voordat ek sy regs opinie
terug ontvang ek kan ook geen besluit maak voordat
ek met hom gepraat
het nie. Ek gaan NIE soos die laaste keer die dag wat ons moet
onderhandel
onder druk geplaas word en gedwing word om ‘n
besluit te maak
. Dit is beter dat ek eers met my
regsverteenwoordiger praat ‘n dag of twee vat om daaroor te
dink en dan ‘n besluit
te maak. Siende waar ons is, glo
ek dis nie ‘n onredelike versoek nie.” [
sic
] (My
emphasis)
[57]
In the replying affidavit Dane again contends as in the founding
affidavit that the November 2022 Order was not by consent.
She
further avers as follows at paragraph 45.1 of the replying affidavit:
“
The
agreement had to be in writing and as is demonstrated by the
re-distribution agreement, this has never been signed by me.”
[58]
From the aforesaid it is evident that Dane’s (and Lisa’s)
version in support of the setting aside/rescission
of the November
2022 Order, is not consistent throughout the relevant evidence.
It differs from: (i) not having agreed to
any order, (ii) to having
agreed to a different order, (iii) to having been coerced into
consenting to an order and (iv) to not
having consented in writing to
an order.
[59]
Read with the aforesaid, it is necessary to deal with some of the
main facts and circumstances which occurred after the
November 2022
Order was issued.
[60]
Castro applied on his own behalf and on behalf of Badenhorst to the
Master on 8 December 2022 for the issuing of amended
Letters of
Executorship and on 14 December 2022 the Master issued amended
Letters whereby Castro and Badenhorst were duly appointed
as
co-executors and authorized to liquidate and distribute the deceased
estate.
[61]
What followed thereupon was that both Dane and Lisa were involved in
meetings and discussions with Castro and Badenhorst
in an attempt to
settle the
distribution
of the assets. At no stage did
Dane and Lisa either object to the appointment and involvement of
Badenhorst and Castro or
to the fact that the discussions were in
respect of the distribution of the assets, hence, in accordance with
the November 2022
Order (not in accordance with the redistribution
order which only came into being in April 2022).
[62]
On 31 January 2023 Castro sent a letter to Dane in which the
following was stated:
“
3.
Ons is in afwagting van
jou voorgestelde lys van die verdeling van
die bates
, waarby ons dan sodra dit bekragtig kan word die bates
dan toe sal ken in jouself asook
die ander erfgenaam
, elkeen
onderskeidelik besit en verantwoordelikheid neem daarvoor”. (My
emphasis)
This
letter is attached as annexure “X85” to the answering
affidavit.
[63]
Kruger sent an e-mail to Castro and Badenhorst on 6 February 2023,
annexure “X86” to the answering
affidavit, confirming
that both Castro and Badenhorst know that Kruger Venter acts on
behalf of Dane and Lisa and that Dane “
wil bitter graag die
verdeling van die boedel afhandel
en die
aangeleentheid bylê
”. (My emphasis) In addition, they
requested that a round table conference be held with the co-executors
in the forthcoming
week. Badenhorst responded on the same day
that the executors are available for a round table conference to be
held on 12
February 2023.
[64]
On 6 February 2023 Dane addressed an e-mail to Kruger, annexure “X87”
to the answering affidavit,
which was also copied to Lisa, wherein
she,
inter alia
, stated the following:
“
Volgende
het ek vir beide Mnr Castro en Mnr Kruger verduidelik
ek gaan nie
verder aangaan met die skikking
tot ek weet Sentinel pensioengoed
is uitgesort …”
[65]
On 26 February 2023 Badenhorst sent a letter to Kruger and Castro
confirming that Dane had still not indicated
via a list setting out
the assets which she would like to obtain
in specie
and once
such list has been received from Dane and Elaine, the parties should
attempt to conclude a provisional redistribution
agreement in order
to speed up the finalization of the deceased estate. This
letter is attached to the answering affidavit
as annexure “X92”.
[66]
On 10 March 2023 Kruger sent a letter to Badenhorst and Castro, which
was accompanied by a list which was
authored by Dane setting out a
proposed distribution of assets
in specie
between herself and
Elaine. The following was stated in the said letter:
“
Wat
betref die voorgestelde verdeling is dit `n ontsettende moeilike
kwessie om op te los in die afwesigheid van `n behoorlike waardasie
van die BK`s se ledebelang.
Ons
kliënt meld egter dat indien u kliënt volstaan met die R2
000 000.00 waardasie op die BK`s sy vry is om dan die
besighede
oor te neem onderhewig daaraan dat die R 2 000 000.00 in ag
geneem word by die uiteindelike verdeling van die
geheel van die
boedel (uiteraard sal die R 2 000 000.00 moet afgetrek word
by enige waarde wat geheg word aan 50% van
haar aandeel in die
boedel).
Ons
heg hierby aan ‘n informele nota geskryf deur ons kliënt
ten opsigte van die
voorgestelde verdeling wat sy in gedagte het
,
dit word met die voorbehoud aangestuur dat indien die BK ledebelang
syfers die waarde van die boedel aansienlik verminder of vermeerder
hierdie aangepas sal moet word”. (My emphasis)
The
said letter and list are attached to the answering affidavit as
annexures “X94” and “X95”, respectively.
[67]
On 13 April 2023 Castro sent an e-mail to Badenhorst and Kruger, in
which Dane was copied, attached to the
answering affidavit as
annexure “X101”, with a proposed redistribution
agreement.
[68]
Subsequent thereto, on 19 April 2023, Castro sent an e-mail to Kruger
and Badenhorst, to which an amended
and final proposed redistribution
agreement was attached. In this regard the following is stated
in the e-mail which is attached
to the answering affidavit as
annexure “X102”:
“
Na
aanleiding van die boedevergadering soos gehou op 13 deser en ook
voorstelle en versoeke vanaf die kantore van Mnr Badenhorst
namens sy
kliënt, het ons nou die finale herverdeling gereed en heg ons
dit hiermee vir ondertekening deur die erfgename.”
[69]
On 20 April 2023 Elaine and Badenhorst signed the proposed
redistribution agreement. The crux of the
proposed
redistribution agreement was in accordance with the November 2022
Order to the effect that Dane and Elaine shall each
be entitled to
50% of the value of the deceased estate after all creditors,
administration costs and expenses have been paid and
accounted for.
[70]
On 24 April 2023 Kruger responded to Castro and Badenhorst that the
proposed amended final redistribution
agreement is not acceptable to
Dane since a proper valuation of the close corporations was not
undertaken, thereby making it impossible
for Dane to make an informed
decision. Nevertheless, Dane persisted with her previous offer
as set out in the list of assets
she previously suggested.
[71]
Thereupon the two e-mails dated 3 May 2023 and 4 May 2023,
respectively, followed. The 3 May 2023 e-mail
was addressed to
Kruger, with Lisa copied therein. The 4 May 2023 e-mail was addressed
to Castro and Lisa respectively. I have
already dealt with these two
e-mails at paragraphs [65] and [66] above.
[72]
On 10 May 2023 Dane and Lisa terminated the mandate of Kruger Venter
and appointed a new attorney, Mr Mark
Leathers of McNaught & Co.
[73]
On 5 June 2023 Badenhorst informed Mr Leathers that he is withdrawing
as attorney of record for Elaine and
that she will henceforth be
represented by Noordmans.
[74]
On 5 October 2023 the present rescission application was issued by
McNaught on behalf of Dane and Lisa.
Legal
principles:
[75]
As previously mentioned, one of the defences raised by Elaine,
Badenhorst and Noordman is peremption (acquiescence).
[76]
Within the context of the conclusion of a contract, the following has
been held in
McWilliams v First Consolidated Holdings (Pty) LTD
1982 (2) SA 1
(A) at 10 E – H in respect of acquiescence
constituting a contract:
“
I
accept that 'quiescence is not necessarily acquiescence'
(see
Collen
v Rietfontein
Engineering Works
1948
(1) SA 413
(A)
at 422) and that a party's failure to reply
to a letter asserting the existence of an obligation owed by such
party to the
writer does not always justify an inference that the
assertion was accepted as the truth. But in general, when according
to ordinary
commercial practice and human expectation firm
repudiation of such an assertion would be the norm if it was
not accepted as
correct, such party's silence and inaction,
unless satisfactorily explained, may be taken to constitute an
admission by him of
the truth of the assertion, or at least will be
an important factor telling against him in the assessment of the
probabilities
and in the final determination of the dispute. And an
adverse inference will the more readily be drawn when the
unchallenged
assertion had been preceded by correspondence or
negotiations between the parties relative to the subject-matter of
the assertion.
(See
Benefit
Cycle Works v Atmore
1927
TPD 524
at 530 - 532;
Seedat
v Tucker's Shoe Co
1952
(3) SA 513 (T)
at 517 - 8;
Poort
Sugar Planters (Pty) Ltd v Umfolozi Co-operative Sugar Planters
Ltd
1960
(1) SA 531
(D)
at 541; and of
Resisto
Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd
1963
(1) SA 632 (A)
at 642A - G.) I have no doubt that
appellant's silence and inaction after receipt of the letter justify
an inference adverse
to him.”
[77]
In the judgment of
Schmidlan v Multi Sound (Pty) Ltd
1991 (2) SA 151
(C) the court found as follows at 156 A - E:
“
Delay
is however relevant in this case, not
per
se
,
but because that judgment was not a mere paper tiger but was being
executed albeit in minuscule monthly instalments via the s
65
proceedings in the magistrate's court.
Acquiescence
in the execution of a judgment must surely in logic normally bar
success in an application to rescind
on
the same basis as acquiescence in the very granting of the judgment
itself would. Cf
Mvaami
(Pvt) Ltd v Standard Finance Ltd
1977
(1) SA 861
(R)
at 862F - G. The alleged application for
condonation is nothing but a disguised supplementing of applicant's
affidavits in
an attempt to explain away his doing nothing about
the judgment on which monthly instalments were being paid to his
knowledge
and with his consent as constituting something other than
acquiescence in that judgment.
On
his own affidavits and annexures, including the affidavit in the
so-called application for condonation and without having regard
to Orman’s opposing affidavit and its annexures,
I
am satisfied that applicant did indeed acquiesce in that judgment.
True, he did so conditionally or temporarily - for as long
as it
suited him, for as long as execution did not become painful.
The relevant passages from his affidavits have been quoted above. In
my view, a litigant cannot purport to eat his cake and have
it too in
the matter of rescinding a judgment any more than a party to a
contract is permitted simultaneously to approbate
and reprobate.
Public interest requires that the Court's orders should be certain
and final.
Naidoo
v Cavendish Transport Co (Pty) Ltd
1956
(3) SA 244
(N)
at 248A.” (My emphasis)
[78]
In
Nkata v Firstrand Bank Ltd
2014 (2) SA 412
(WCC) the
court followed a similar approach at paras [30] – [31]:
[30]
Quite apart from these considerations, FRB and Kraaifontein
Properties contend that Nkata lost the right to seek rescission
when
she settled the first rescission application. I think that contention
is correct. Athough Mr
Van
Reenen
argued
this aspect with reference to principles of compromise and estoppel,
I think the relevant legal principles are those
relating to
peremption. The principles of peremption apply not only to appeals
but also to the remedy of rescission (see
Sparks
v David Polliack & Co (Pty) Ltd
1963
(2) SA 491 (T)
at 496D – F). The general principle is
that 'no person can be allowed to take up two positions inconsistent
with one
another, or as is commonly expressed to blow hot
and
cold, to approbate and reprobate'.
In
order to show that a person has acquiesced in a judgment, the court
must be satisfied upon the evidence 'that he has done an
act which is
necessarily inconsistent with his continued intention to have the
case reopened or to appeal'
(
Hlatshwayo
v Mare and Deas
1912
AD 242
at 259). (My emphasis)
[31]
Here Nkata initially decided to challenge the default judgment.
One of the points she raised in the first application
was the
alleged non-compliance with s 129(1).
Her conduct in settling that
case on the terms I have described is entirely inconsistent with a
continued intention on her part
to have the case reopened by way of
rescission.
” (My emphasis)
[79]
In
Zuma v Secretary of the
Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector
Including Organs of State
(CCT
52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17 September 2021)
the following principles are stated by the Constitutional
Court at
para [101] of the judgment:
“
[101]
It
is trite that the doctrine of peremption finds application across our
legal landscape. The doctrine tells us that “[p]eremption
is a waiver of one’s constitutional right to appeal in a way
that leaves no shred of reasonable doubt about the losing party’s
self-resignation to the unfavourable order that could otherwise be
appealed against”. The principle that underlies this doctrine
is that “no person can be allowed to take up two positions
inconsistent with one another, or as is commonly expressed, to
blow
hot and cold, to approbate and reprobate”. Notwithstanding
this, our law does allow for some flexibility where policy
considerations exist that militate against the enforcement of
peremption. Although the doctrine has its origin in appeals, the
doctrine and its principles do apply equally in the case of
rescission”.
[80]
Acquiescence in an order or its execution therefore bars an
application for rescission.
Consideration
of the merits:
[81]
In the present matter, Dane and Lisa allege at paragraph 1.43 of the
founding affidavit as follows:
“
I
contacted Cassie Kruger (“Cassie) and told him that I never
gave him instructions to settle on these terms. In several
communications that followed, telephonic and by e-mail, did we repeat
this point to Cassie. Attached hereto marked “DZ4”
is a
copy of an e-mail I sent to Cassie on 3 May 2023, wherein I again
bring it to his attention that he November 2022 Order was
not what I
agreed to.”
[82]
There is, however, before the e-mail of 3 May 2023, nothing in
writing wherein Dane and Lisa expressed their dissatisfaction
with
the November 2022 Order. To the contrary, the execution of the terms
of the November 2022 started to be implemented early
in December 2022
already, without any objection from Dane and Lisa. To the contrary,
Dane and Lisa, especially Dane, participated
actively in the process
and negotiations in an attempt to reach an agreement between herself,
Lisa and Elaine, pursuant to the
terms of the November 2022 Order in
terms whereof the estate of the deceased was to be divided 50/50
between Dane and Elaine.
Dane even went as far as drafting a
list to indicate her proposition as to how the specific assets were
to be distributed between
herself and Elaine.
[83]
As already set out earlier in the judgment, the to and fro
communications continued up to the point where
Badenhorst set forth
the proposed redistribution order which was signed by Elaine and
Badenhorst.
[84]
In response thereto Dane and Lisa did not dispute the validity of the
November 2022 Order, but merely the
proposed manner in which the
assets were to be distributed on a 50/50 percent basis between Dane
and Elaine. Instead, in the letter
of 24 April 2023, Annexure “X106”
to the answering affidavit, written by Kruger addressed to Castro and
Badenhorst,
it was indicated that the t
erms
of the proposed
redistribution agreement were not acceptable, but it was specifically
indicated that Dane and Lisa are still willing
to conclude an
agreement in terms of the list previously provided by Dane. In
this regard the following was stated:
“
Na
deeglike oorweging van die voorgestelde herverdelingsooreenkoms is
dit ons kliënt se opdragte dat
die terme daarin uiteengesit
nie aanvaar word nie
.
Uiteraard
in die afwesigheid van `n behoorlike waardasie van die Beslote
Korporasies is dit vir ons kliënte ook op hierdie
stadium nie
moontlik om `n ingeligte besluit te neem nie.
Ons
kliënte volstaan by hulle vorige aanbod
en verneem graag van u.” (My
emphasis)
[85]
It was only on 3 May 2023 that Dane and Lisa changed their stance and
instructed Kruger that the court should
be approached to have the
November 2022 Order “
withdrawn
”.
[86]
On the same date, 3 May 2020, Castro sent an e-mail to Dane, in which
Badenhorst and Kruger were copied,
attached as annexure “X107”
to the answering affidavit, in which Castro stated,
inter alia,
the following:
“…
wil
dit blyk dat herverdeling van die boedel nie kan plaasvind nie,
weens
u nie die terme daarvan aanvaar nie
.
Soos
per die vergadering gehou gister tussen skrywer en uself is daar
verskeie navrae welke nog beantwoord moet word en word daar
hiermee
`n boedel vergadering geroep vir Vrydag, 5 Mei 2023 om 14h00 …
Die
doel hiervan is om finaliteit te gee tot alle navrae en versoeke en
om die
terme
van die voorgestelde herverdelingsooreenkoms
asook die finansiële posisie van die boedel te verduidelik. …”
(My
emphasis)
[87]
In response to the last-mentioned e-mail, Dane addressed the
e-mail of 4 May 2022 to Castro, in which Lisa was copied,
attached to
the to the answering affidavit as annexure “X108”, in
which it was indeed indicated that Dane and Lisa
gave instructions to
Kruger in respect of the “withdrawal” of the November
2022 Order, but Dane at the same time stated
that she was still
awaiting a legal opinion from Kruger and was unable to make a
decision in the meantime. In my view, the aforesaid
“decision”
to which Dane refers, was whether Dane and Lisa were to approach
court or whether they should accept/further
negotiate the terms of
the proposed redistribution agreement. I consider it prudent to quote
the said paragraph:
“
Soos
jy weet, stem ons nie saam met die hofbevel nie aangesien dit nie was
waaroor ons ooreengekom het nie. Ons het alreeds
die punt aan
ons regsverteenwoordiger genoem en ook instruksies gegee insake die
verband en wag vir sy terugvoering. Dit
sal onverskuldig wees
van my om voort te gaan voordat ek sy regs opinie terug ontvang ek
kan ook geen besluit maak voordat ek met
hom gepraat het nie.
Ek gaan NIE soos die laaste keer die dag wat ons moet onderhandel
onder druk geplaas word en gedwing
word om ‘n besluit te maak.
Dit is beter dat ek eers met my regsverteenwoordiger praat ‘n
dag of twee vat om
daar oor te dink en dan ‘n besluit te maak.
Siende waar ons is, glo ek nie dis ‘n onredelike versoek nie.”
[88]
In my view the conduct of Dane and Lisa is in accordance with the
above quoted authority, more specifically
the following quote from
the
Schmidlan
-judgment:
“…
.
I am satisfied that Applicant did indeed acquiesce in that judgment.
True, he did so conditionally or temporarily –
for as long as
it suited him, for as long as execution did not become painful.”
[89]
In the present application, as previously pointed out, Dane and Lisa,
firstly, contradicted themselves in
setting out their case with
regard to the lack of authority. That, in itself, is already a
problem for the potential success
of this application.
[90]
Secondly, and in addition, it is in my view evident from the facts
and circumstances set out above that pursuant
to the November 2022
Order, Dane and Lisa very happily and actively participated in the
process of attempting to reach a settlement
on the basis of which the
assets of the deceased be divided on a 50/50 basis between herself
and Elaine. This was “
for as long as it suited (him),
for as long as execution did not become painful
”. It
was only once Dane and Lisa were not satisfied with the terms of the
proposed redistribution agreement, that they
considered falling back
on the option of having the November 2022 Order set aside/rescinded.
[91]
From the events set out above, it is in my view evident and I am
satisfied that Dane and Lisa, for the better
part of five months
after the granting of the November 2022 Order, acted completely
inconsistent with an intention to have the
said Order set
aside/rescinded. I am therefore satisfied that they did indeed
acquiesce in the November 2022 Order. Dane and Lisa
consequently lost
their right to seek the setting aside/rescission of the November 2022
Order.
[92]
Considering this finding, the issue whether Kruger had the authority,
or not, to have agreed to the November
2022 Order, has become
irrelevant. I therefore deem it unnecessary to deal with the issue of
authority.
[93]
Other than for the joinder of the additional parties, the application
therefore stands to be dismissed.
Costs:
[94]
Although Mr Reinders submitted that should the application not be
successful, it would be reasonable and
appropriate to order each
party to pay his/her own costs, I cannot agree with him. Considering
the facts and circumstances of the
matter, there is no reason why
costs should not follow the outcome.
[95]
There is, however, a further aspect of the costs that necessitates
consideration.
[96]
References to “the applicants” are references to Dane and
Lisa and references to the “the
respondents” are
references to Elaine, Badenhorst and Noordmans.
[97]
The answering affidavit and the respondents` heads of argument are
exceptionally voluminous. The prolixity
thereof burdens the reader to
the extreme and completely unnecessarily so.
[98]
The founding affidavit consists of 19 pages and a further 21 pages
consisting of 6 annexures. On the other
hand, the answering affidavit
consists of 128 pages and a further 888 pages consisting of 138
annexures. The replying affidavit
consists of 15 pages. The
applicants` heads of arguments consist of 7 pages (Mr Reinders was
not the author thereof) and I must
say that some more effort could
have been put into the drafting thereof. However, to the other
extreme, the respondent`s heads
of argument consist of 129 pages. As
pointed out in the replying affidavit, this is despite the following
averment made at the
beginning of the answering affidavit:
“
Nevertheless,
I shall attempt not to make this Answering Affidavit unduly prolix
and shall therefore only attach such annexures
that I consider to be
materially relevant.”
[99]
I have to put it on record that it is evident that tremendous time
and effort were put into the drafting
of both the answering affidavit
and the respondents’ heads of argument. However, unfortunately
much of the contents of both
the answering affidavit and the heads of
argument are irrelevant. Paragraph 8 up to paragraph 75 of the
answering affidavit
contain a “
chronology
”
consisting of background facts and circumstances, which are
completely irrelevant to the present dispute. That already accounts
for some 56 unnecessary pages and 76 unnecessary annexures.
Paragraphs 113 to 116, for instance, is another example of irrelevant
averments and information in the founding affidavit. The heads of
argument, in general, also contain far too much and unnecessary
detail, both with regard to the facts and the applicable legal
principles.
[100]
In the circumstances I consider it appropriate, fair and reasonable
that the applicants are only to pay two-thirds of the
costs of the
application and that the respondents therefore be deprived of
one-third of their costs of the application.
Order:
[101]
I make the following order:
1.
The sixth-, seventh-, eighth-, ninth-, tenth- and eleventh
respondents are joined to this
application as respondents.
2.
Condonation is granted to the first respondent (Elaine van Zyl), the
sixth respondent (Hermanus
Steyn Badenhorst N.O.) and the seventh
respondent (Noordmans Attorneys) for the late filing of the answering
affidavit.
3.
The first respondent (Elaine van Zyl), the sixth respondent (Hermanus
Steyn Badenhorst N.O.)
and the seventh respondent (Noordmans
Attorneys) are ordered to pay the costs in relation to the
condonation application, jointly
and severally, the one to pay the
other the be absolved.
4.
Prayers 1, 1.2, 1.3, 1.4, 1.5, 1.6 and 2 of the Notice of Motion are
dismissed.
5.
The first applicant (Dane Andrea van Zyl) and the second applicant
(Lisa Docherty) are ordered
to pay two-thirds of the costs of the
application, jointly and severally, the one to pay, the other to be
absolved; therefore,
two-thirds of the costs of the first respondent
(Elaine van Zyl), the sixth respondent (Hermanus Steyn Badenhorst
N.O.) and the
seventh respondent (Noordmans Attorneys) in relation to
the application, jointly and severally, the one to pay the other to
be
absolved.
C.
VAN ZYL, J
On
behalf of the Applicants:
Adv.
L Meintjies
Instructed
by:
Noordmans
Inc. Attorneys
BLOEMFONTEIN
E-mail:
admin@noordmans.co.za
anton@noordmans.co.za
On
behalf of the 1
st
, 6
th
& 7
th
Respondents:
Adv.
SJ Reinders
Instructed
by:
McNaught
& Co.
C/o
Lovius Block Attorneys
BLOEMFONTEIN
E-mail:
litigation@maclaw.co.za
lorinda@lvba.co.za