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2024
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[2024] ZAECQBHC 52
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I.L.L v L.V.H (3700/2023) [2024] ZAECQBHC 52 (3 September 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
NOT
REPORTABLE
Case No: 3700/2023
In the matter between:
I[...]
L[...]
L[...]
Applicant
(IDENTITY NUMBER: 4[…])
and
L[...]
V[...]
H[...]
Respondent
(IDENTITY NUMBER: 6[…])
JUDGMENT
ELLIS
AJ:
[1]
This is an application for payment of the sum of R4 700 000
together with interest thereon and costs. The applicant’s claim
is alleged to arise from a
donatio mortis causa
.
[2]
The factual matrix of the matter may be described as follows. The
applicant
and respondent are mother and daughter, who were reunited
late in the applicant’s life after many years being apart
without
any contact. The applicant moved to the United Kingdom around
2009 and returned to South Africa during November 2019, after
separating
from her husband. On arrival in South Africa the applicant
stayed with the respondent and her family. The applicant instituted
an action for divorce against her husband around January 2020, but
before the divorce action could be finalised the applicant’s
husband died. Upon his death the applicant became the sole heir in
her late husband’s estate, which comprised of around
R10 000 000 (more than £770 000). Unfortunately,
the applicant’s windfall then invited discord into what
could
have been a harmonious relationship between mother and daughter in
the applicant’s golden years.
[3]
It is not necessary to traverse the litigation history between the
parties,
suffice to state that it culminated in the applicant
launching a so-called
Mareva
injunction application during
July 2022, against
inter alia
the respondent, resulting in an
order directing the return of certain funds to the applicant. It is
clear that the relationship
between mother and daughter had soured by
then.
[4]
Approximately a year before the
Mareva
application, and during
July 2021, while the relationship was still intact – no
evidence to the contrary was placed before
me – the applicant
instructed the solicitor duly appointed to administer the winding up
of the estate of the applicant’s
late husband, to release the
sum of R4 700 000 in order to purchase the immovable
property situate at 2[…] S[…]
Road, B[…],
Gqeberha (I will refer to this as “the property”). On 6
August 2021 the sum of R4 700 000
was transferred by the
solicitors into the applicant’s bank account. On 7 August 2021
the same amount was transferred by
the applicant into the bank
account of the nominated conveyancers as purchase price in respect of
the property. The property was
duly transferred and registered in the
name of Sproink (Pty) Limited (“Sproink”) of which the
respondent and her husband
are the sole directors and shareholders.
[5]
The applicant’s version is that the sum of R4 700 000
was intended as an inheritance for the respondent and it was paid to
the respondent. As such the applicant alleges that the donation
is
the monetary sum of R4 700 000 and not the property, which
the respondent had purchased through the vehicle of Sproink.
Importantly, and the main contention why the applicant alleges the
donation is a
donatio mortis causa
, is the fact that on both
versions, supported by evidence adduced in the
Mareva
application, the sum of R4 700 000 was intended to be part
of the respondent’s inheritance. If the donation was
given as
an inheritance, the applicant alleges that it must have been given in
contemplation of death and axiomatically must be
a
donatio mortis
causa
. Insofar as the
donatio mortis causa
was not reduced
to writing and signed by the applicant, she alleges that the
donatio
is invalid and unenforceable and she is entitled to repayment,
alternatively to the extent that it may have constituted a valid
donatio mortis causa
, she has revoked the donation and thus
she is entitled to payment.
[6]
The respondent’s version is that after her mother received the
funds
from her late husband’s estate, she expressed to the
respondent that the money would be a means to improve all their lives
and her mother wished to purchase a property. This property was to be
a gift to the respondent and her husband as donation and
serve as an
early inheritance.
[7]
As main defence, the respondent alleges that although the property
was
viewed as an early inheritance, this was not done on the basis of
a
donatio mortis causa
but as a gift – an
inter vivos
donation. In support thereof, Ms Morris, for the respondent, argued
that the donation took place during the applicant’s lifetime
and had vested (albeit in Sproink) as opposed to a
donatio mortis
causa
, where the donor retains ownership of the item, and the
vesting of the donation only takes effect on the death of the donor.
The
respondent also raised non-joinder as she alleges that her
husband and Sproink ought to have been joined to the proceedings, as
she had not received the money, and the money was utilised to
purchase the property registered to Sproink.
[8]
A
donatio mortis causa
is one of the valid forms of the
pactum
successorium
, which, simply put, is an agreement regulating the
succession of the estate of a person upon their death. The
donatio
mortis causa
is made in contemplation of the death of the donor,
and one of the special features of the
donatio mortis causa
is
that it may be revoked by the donor at any time prior to his/her
death.
[9]
In
Ex
Parte Steyl
[1]
De Beer JP referred to the
donatio
mortis causa
as follows:
“…
according
to Maasdorp, Institutes (7
th
Ed Volume 1 pg 248), (a
donatio mortis causa
) may be made in one or other of these
three ways:
(1)
By the donor giving something in mere general contemplation of death,
but without any fear of an early death or any imminent danger, upon
the understanding that it is not to become the property of the
donee
until the donor’s death; or
(2)
When the gift is made in fear of death from a present illness or from
a particular imminent danger, with the undertaking that it is not to
become the property of the donee until the death of the donor
from
the particular illness or danger; or
(3)
Where the donation is made in special fear of death, but on the
understanding
that the dominium is to pass to the donee at once, but
that the property is to be returned if the donor recovers or escapes
from
the particular illness or danger.”
[10]
According to Corbett CJ in
McAlpine
v McAlpine N.O. and Another
[2]
the most appropriate test for determining whether or not a contract
amounts to a
pactum
successorium
is the vesting test, applied by asking whether the promise of
disposing of an asset in favour of another causes the right thereto
to vest in the promisee only upon or after the death of the promisor
(which points to a
pactum
successorium
);
or whether vesting takes place prior to the death of the promisor,
for instance at the date of the transaction giving rise to
the
promise (in which case it cannot be a
pactum
successorium
).
[11]
If there is doubt in a particular case as to the nature of a
donation, the presumption is in
favour of a
donatio inter vivos
as opposed to a
donatio mortis causa
.
(See
Voet 39 6 2; Van der Merwe and Rowland
1980 588; and Jordaan v De Villiers
1991 (4) SA 396
(C)
)
.
[12]
It is settled that our law requires a
donatio
mortis causa
to be executed in accordance with the statutory formalities which
apply to the execution of a will
[3]
.
It is common cause that the donation by the applicant was not
executed in this manner. I accept that as far as compliance with
the
formality requirements is concerned, it is possible that a
donatio
mortis causa
that does not comply with testamentary formalities can be condoned by
the court. Mr Pye on behalf of the applicant argued that
despite the
fact that no written
donatio
mortis causa
complying with the testamentary formalities was executed, the
intention was for the donation to be a
donatio
mortis causa
(as
it was given as inheritance) but due to non-compliance with the
formalities the
donatio
is invalid and unenforceable. As alternative to that proposition he
argued that a
donatio
mortis causa
may be revoked at any time, and to the extent that the
donatio
was valid, the applicant is entitled to revoke the
donatio
at any time. On both scenarios, the applicant alleges she is entitled
to payment of the sum donated. This proposition seems contradictory
to me as the applicant cannot have it both ways. If she accepts that
there was no valid
donatio
mortis causa
,
then her cause of action lies elsewhere.
[13]
The cash sum of R4 700 000 was never paid to or received by
the respondent even on
the applicant’s own version. The funds
were transferred into the nominated conveyancer’s account and
the applicant
knew that the property would be purchased with the
R4 700 000. The parties are in agreement that the donation was
intended
as early inheritance, but I agree with Ms Morris that the
donation had vested upon the transfer of the immovable property. The
fact that a donation is intended as early inheritance does not
preclude such a donation from being one
inter vivos
. It is
rather the question of when the donor intended the donation to vest
that is the determining factor. There are no allegations
by the
applicant that the donation (cash sum or otherwise) would only vest
in the respondent upon the applicant’s death,
to the contrary
the applicant says that the respondent already received the
R4 700 000 as inheritance. Whether or not
the applicant had
knowledge of the entity in which the property was purchased has no
bearing, as even on her own version she accepts
that she paid
R4 700 000 to purchase the property for the benefit of the
respondent. This is not alleged to have been
contingent on the
happening of any other event, so there is no evidence that the
vesting of the donation was to be postponed until
the death of the
applicant. The presumption that the donation was made
inter vivos
must accordingly prevail.
[14]
The donation therefore did not constitute a
donatio mortis causa
and the application for payment cannot succeed on that basis. It
would thus be superfluous to deal with the issue of non-joinder.
[15]
In the circumstances I make the following order:
1.
The application is dismissed with costs.
L
ELLIS
ACTING
JUDGE OF THE HIGH COURT
Date
heard:
16 May 2024
Judgment
delivered:
3 September 2024
Appearances:
For
the applicant:
Adv Pye SC
Cuthbertson &
Palmeira Attorneys Inc.
C/o Jacques Du Preez
Attorneys
For
the respondent:
Adv Morris
Quinton Van der Berg
Attorneys Inc.
[1]
Ex
parte Steyl 1951 (1) SA 275 (O)
[2]
[1996] ZASCA 127
;
1997
(1) SA 736
(A) at 750 C – E.
[3]
See
section 2
of the
Wills Act, 7 of 1953