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[1990] ZASCA 41
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Hoeksma and Another v Hoeksma (511/88) [1990] ZASCA 41; 1990 (2) SA 893 (AD); (30 March 1990)
CG CASE NO: 511/88
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
ROELOF HOEKSMA
1st Appellant
HENDRIKJE TERBLANCHE
2nd
Appellant
and
RIEKELE HOEKSMA
Respondent
CORAM
: JOUBERT, SMALBERGER JJA, NICHOLAS, FRIEDMAN et NIENABER
AJJA
HEARD
: 23 MARCH 1990
DELIVERED
: 30 MARCH 1990
JUDGMENT NIENABER AJA
2
This appeal is the sequel to a feud between
siblings
about the will of their father.
Clause 2 of the will provides:
"Ek bemaak aan my seun Riekele Hoeksma 1500 (een duisend vyf honderd) vierkante
meter van plot 27 in die dorpsgebied Buccleuch synde
h gedeelte waarop die
woonhuis staan. Die restant van plot 27 in die dorpsgebied Buccleuch sal deel
van die restant van my boedel
(wees?) waarna verwys word hieronder."
Clause 8, following upon a number of
further
legacies, continues as follows:
"Ek bemaak die restant van my boedel van welke
aard ookal, aan my drie kinders
Riekele Hoeksma
Hendrikje Terblanche (geb Hoeksma)
Roelof Hoeksma
in gelyke dele."
Riekele Hoeksma, the present respondent, was
the
successful applicant in the Court below. He was
awarded certain relief
against the Master of the Supreme
Court, the first respondent in the Court
below; against
the executor dative, an attorney, who was the second
3
respondent; and principally against his brother, Roelof Hoeksma and his
sister, Hendrikje Terblanche (born Hoeksma), the third and
fourth respondents
respectively. The Town Council of Sandton was cited as a pro forma fifth
respondent because the property in question
is situated within its municipal
boundaries and any sub-division thereof would require its consent.
Roelof
Hoeksma is now the first and Hendrikje Terblanche the second appellant. Riekele
Hoeksma is the sole respondent. The remaining
parties do not figure as such in
this appeal.
The root of the problem was clause 2, both as to its meaning and
implementation.
The respondent resided on the property in
question. He and
his family had done so for several
years before the will was executed and his
father died.
In his founding affidavit he said (and this was
not
challenged):
4
"The property was improved by the erection of a dwelling house, in which I live,
outbuildings, a garden and an orchard. All of those
items were constructed on
approximately half the property, which was that portion of the property that was
utilized by me. The remaining
half of the property was not utilized by me and
although there were certain buildings of no real value on same that portion of
the
property remained unused."
The
entire property, according to the founding
affidavit, measured 12916 m
2
. The portion occupied by
the
respondent and his family extended well beyond 1500
m
2
. He went on
to explain that
"... the positioning and size of the house on the property is such that an area
totalling 1500 square metres could not be excised
from the property so as to
include the main house itself without cutting off portion of the outbuildings
and garden. It was my view
that my father who was a man of extremely advanced
years at the time that he made the Will did not understand same and that what
he
intended to leave me was that western half of the property which had at all
material times been occupied by me and which was demarcated
by a fence."
Although this statement was not denied on
the
papers, his brother and sister, the present
appellants,
5
plainly did not share his views about their father's intention. One can
appreciate their scepticism. Clause 2 is unquestionably ambiguous.
What, one may
well ask, was it intended to convey: that the respondent was confined to a mere
1500 m
2
surrounding the house (as counsel for the appellants
contended); or that he was entitled to the fenced area occupied by him, which
the testator sought to describe generally with the words "synde 'n gedeelte
waarop die woonhuis staan", but which he erroneously
estimated tb be only 1500
m
2
in extent? And if the appellants are correct, how was the clause
to be implemented? What were the boundaries óf the 1500 m
2
?
Unless the beneficiaries could find common ground, these problems could only be
resolved by a court after hearing evidence, and
even then the possibility would
remain that the clause might have to be disregarded if it should be found to be
incapable of implementation.
(cf
CORBETT AND OTHERS, THE LAW OF SUCCESSION IN
SOUTH AFRICA
, 484-489.)
6
These uncertainties led to protracted negotiations between the parties "in an
effort to avoid litigation". One conseguence of the
ensuing friction was that
all of them were removed as executors and that an attorney (the second
respondent in the Court below) was
appointed in their stead.
It was in the
latter's office that the three beneficiaries, duly assisted by their respective
attorneys, eventually arrived at a settlement
of the dispute. This was on the
20th November 1986. The terms of this settlement were recorded in a letter dated
26th November 1986,
which the respondent's attorney addressed to all the other
parties concerned. The gist of the agreement was that the respondent would
receive, as his exclusive domain, an area demarcated on a prepared sketch plan,
on which the house, outbuildings and garden were
situated, and consisting
(according to the letter) of 6202 m
2
; in addition the respondent
would receive
7
1141,50 m
2
adjacent to the demarcated area allocated to him, while
the remainder would accrue to the two appellants in undivided shares.
It all
boiled down to this: the entire property would be so divided that each (i.e. the
respondent on the one side, and the first
and second appellants on the other)
would have an exclusive claim to one part of the plot and would relinquish any
claim to the other.
Sadly, this eminently sensible arrangement did not
prevail. The appellants reneged on it, for reasons which need not now be
discussed.
The respondent continued to maintain that the agreement was a binding
one and insisted that it be implemented. The executor, in common
with the
appellants, took the line, as they still do, that the agreement was invalid for
want of compliance with the provisions of
the
Alienation of Land Act, 68 of
1981
.
8
The executor thereupon drew a Second and Final
Liquidation and Distribution account in which he
recorded, apropos of the
property in question:
"Die titelakte word in terme van Artikel 39 van
Wet 66/65
geëndosseer aangesien die bepaling
van die testament klousule 2, nie
tot
uitvoering gebring kan word nie en die erfgename nie tot h vergelyk kan kom deur
middel van 'n herverdelingsooreenkoms nie."
The
effect of that endorsement, according to a letter
dated the 30th October
1987, which the executor addressed
to the Master, was that a caveat was
placed against the
transfer of the property until such time as
the
beneficiaries arrived at an effective internal solution
as to its
sub-division.
The executor misconstrued
section 39
of the
Administration of Estates Acts, 66 of 1965. The section
has nothing
whatsoever to do with the present situation,
as counsel for the appellant
readily conceded, nor
does it make any provision for a caveat of the sort
9
devised by him.
The respondent, rightly so, objected to the
account but the Master overruled the objection without
furnishing any
reasons for doing so. The respondent
accordingly had no option but to apply
to the Transvaal
Provincial Division for relief. The application
was
successful and the Court below made the following order:
"1. The decision of the first respondent (the Master) rejecting the applicant's
objection to the second and final liquidation and
distribution account submitted
by the second respondent to first respondent in the estate of the late Roelof
Hoeksma, estate No.
3341/82, is set aside.
2. It is declared that the oral agreement entered into between the applicant and
the third and fourth respondents on 20 November
1986 is valid and binding.
3. The second respondent is ordered to take all necessary steps to implement the
terms of the said oral agreement.
4. The third and fourth respondents are
ordered to pay the costs of the
application
jointly and severally the one paying the other
to be
absolved."
It is against that order
that the present
10
appellants, with leave of the Court a quo, now appeal.
They did not file any answering affidavits in
the Court below. Their entire opposition, in the Court
below, as in this
CoUrt, rested on a single law point,
contained in a notice in terms of
Rule
6(5)(d)(iii)
,
which read:
"(a) The oral redistribution agreement relied upon by the applicant constitutes
an alienation of land as envisaged by section 1 of
the Alienation of Land Act,
No 68 of 1981;
(b) The oral redistribution agreement relied
upon by the applicant is not
contained in a
Deed of Alienation signed by the parties
thereto or by
their agents acting on their
written authority;
(c) The said oral redistribution agreement is
therefore in terms of section
2(1) of Act 68 of
1981 of no force or
effect."
Section 2(1) of Act 68 of
1981 provides as
follows:
"No alienation of land after the commencement of this section shall, subject to
the provisions of section 28, be of any f orce or
ef fect unless it is contained
in a deed of alienation signed by the parties thereto or by their agents acting
on their written
11
authority."
"Land" is defined in section 1 as including:
"(i) any unit;
(ii) any right to claim transfer of
land;
(iii) any undivided share in
land."
The same section also defines "alienate".
It
means
"sell, exchange or donate, irrespective of whether such sale,
exchange or donation is subject to a suspensive or resolutive
condition, and 'alienation' has a corresponding meaning".
The oral agreement was clearly not a sale
or
donation. The question, indeed the only real
guestion in
this appeal, is whether it entailed an exchange.
"Exchange" is not defined in the Act. It
therefore bears its ordinary meaning. In its most
rudiméntary form
exchange (barter, ruil, permutatio)
marks a transaction between two people
whereby each gives
to the other, as his own, one thing in return for
another. (
DE GROOT
Inl. 3. 31. 6.;
VOET
19. 4. 1.).
12
Exchange differs from sale, historically its precursor and now its
counterpart, in the nature of the reciprocal consideration which
is promised for
the res sold or exchanged: with sale the agreed co-ordinate is essentially the
payment of money; with exchange it
is the delivery or transfer of another asset.
But just as, in sale, the res sold must be an identified or identifiable asset
(cf
CLEMENTS v SIMPSON
1971 (3) SA 1
(A) at 7C-G), so too, in exchange,
the commodities exchanged must both be capable of proper identification. If not,
the transaction,
whatever else it might or might not be, would not be an
exchange.
The appellants' approach is that the oral agreement perfected an
exchange by the parties of the rights they derived from the will
(to claim
transfer of a portion or undivided shares in a portion of the property) for the
corresponding rights which they defined
in the agreement itself. But the
difficulty with this approach,
13
even assuming it to be correct, is that one simply cannot tell, from the
terms of the will itself, exactly what those rights were.
As a contemplated
exchange the oral agreement, as the Court a quo pointed out, lacked the required
degree of certainty.
Indeed, it was for that very reason, viz. to circumvent
the uncertainties of the will, that the parties came to terms with one another.
Their manifest intention was not to engineer a trade-off of their rights to
various parts of the property, but to adjust their respective
claims - to make
better sense of the will; to avert litigation about its terms; to facilitate its
implementation and, by dispensing,
as between the appellants on the one hand,
and the respondent on the other, with a joint holding in undivided shares, to
avoid future
confrontation.
In my view, therefore, the oral agreement, for all that it may have involved
a measure of give and take,
14
was never intended by the parties either to constitute or to incorporate a
contract of exchange. The intention of parties is a relevant
factor in
determining the true nature and classification of a contract. (See, for
instance,
ZANDBERG v VAN ZYL
1910 AD 302
at 309 and, in relation to the
distinction between sale and exchange where the consideration is partly in money
and partly in kind:
VOET
18. 1. 22. and
MOUNTBATTEN INVESTMENTS (PTY)
LTD v MAHOMED
1989 (1) SA 172
(D) at 174-178, where the relevant case law is
collected and discussed.) The present agreement was conceived not as an exchange
but
as a compromise - and, not being an exchange, did not have to comply with
the provisions of the Act in order to be valid.
Counsel for the appellants
rightly did not contend that the oral agreement amounted to a "family
arrangement" which, on the authority
of
BYDAWELL v CHAPMAN NO AND OTHERS
1953 (3) SA 514
(A), was assailable
15
as an attempt to alter the devolution in terms of the
will. Here, all the
rights (to claim transfer) had
vested in the beneficiaries, none of them
minors (cf
GREENBERG AND OTHERS v ESTATE GREENBERG
1955 (3) SA 361
(A) at 364G-366A) although the nature and extent of
those rights
admittedly remained in contention - so that
it was legitimate for the beneficiaries to seek to re-
arrange the assets
of the estate to suit themselves.
"In
Ex parte GRANT
the parties to the agreement, all of full capacity,
disposed of their vested rights. The parties did not purport to alter or modify
the provisions of the will; they compromised on the assets coming to each in the
process of schichten en deelen, as they have been
competent to do according to
Roman-Dutch Law for centuries."
(per Van den Heever
JA in
BYDAWELL'S
case, supra, at
523A.) What appellants' counsel did contend was that the
oral agreement constituted a redistribution agreement.
He relied in particular on a dictum of Clayden J in
KLERCK NO v REGISTRAR OP DEEDS
1950 (1)SA 626 (T) at
16
629:
"I agree with the argument on behalf of the appellant that in every
redistribution there must be involved sale, exchange, or donation
between one
heir and another, or between the heir and the surviving
spouse."
Because it was a redistribution agreement,
and did not
involve a sale or donation, therefore, so the
argument
proceeded, it must be an exchange.
The short answer is of course that this
approach begs the question - the issue is not whether the
agreement can be
described as a redistribution agreement
but whether it amounted to an
exchange. In my judgment,
for the reasons already discussed, it did not. Nor
do I
consider that the appellants can derive any real support
from the dictum of Jansen J in
RABIE v DIE MEESTER VAN
DIE
HOOGGEREGSHOF EN h ANDER
1960 (3) SA 848
(T) at 850G:
"Dit ly geen twyfel aan nie dat 'verdeling' 'n 'vervreemding' uitmaak
nie."
That may be so, generally speaking, but "alienate" in the
17
Act has a circumscribed meaning. Whereas "land", for instance, is defined as
"including" certain categories, "alienate" is defined
as "meaning": "sell,
exchange or donate", no more, no less. To the extent that the present agreement
is not an exchange it accordingly
does not qualify, for the purposes of the Act,
as an "alienation".
For these interrelated reasons - because the parties
contemplated change and not exchange; because the assets to be "exchanged" were
uncertain; and because the oral agreement was essentially a settlement to
resolve these uncertainties - I believe the Court a quo
to have been right in
holding that the agreement concluded on the 20th November 1986 and recorded on
the 26th, was not an "exchange"
and accordingly was not invalidated by the
provisions of the
Alienation of Land Act, 68 of 1981
.
The appeal is dismissed with
costs.
18
P M NIENABER AJA
JOUBERT JA) SMALBERGER JA) NICHOLAS AJA) FRIEDMAN AJA)