SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case No: 2453/2024
In the matter between:
MARGARET HART First Applicant
and
WALTER REGINALD HART First Respondent
TOBY EDWARD HART Second Respondent
ROBERT GEORGE HART Third Respondent
BRANDON JAMES HART Fourth Respondent
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email publication and release to SAFLII. The date and time for
hand-down is deemed to be 14h30 on 20 November 2024.
JUDGMENT
MAPOMA AJ
Introduction
1. This is a family dispute between the stepmother, supported by her son on the
one hand, and her three stepsons on the other. The dispute emanates from the
special bequest that applicant requires to enforce fro m her late husband’s will.
The respective parties are firm in asserting their rights in respect of immovable
property, a guesthouse called E[...] in Camps Bay known as Erf 1[...] Camps
Bay (“the property”) which was owned by the applicant’s husband and the
respondents’ father, the late Peter Dionysius Hart (“the testator”) who died
testate. The property, which is in f ull use of the applicant by virtue of the
usufructuary rights provided for in the will. The property is now registered in the
names of the respondents in accordance with the provisions of the testator’s
will.
2. The applicant has approached this court to enforce the provisions of the special
bequest of the will. In particular, the applicant seeks a number of declaratory
orders central of which is an order declaring that , in terms of the special
bequest, the applicant is entitled to insist on the disposal of the property ,
despite the fact that the first to the fourth respondents are registered owners of
the property, and that the respondents , have no right to refuse to hono ur the
applicant’s decision to sell the property at market related price.
3. The applicant also se eks an order directing the first to the third respondent s to
sign the deed of sale and such documents as may be required and take such
steps as are necessary to ensure that the sale and transfer of the property is
finalised. The first to the third respondents are resisting the application, insisting
that the applicant’s right to dispose of the property is not unfettered, in that they
have a right to refuse the sale if the proceeds thereof are to be inves ted in the
manner proposed by the applicant. The fourth respondent, who incidentally , is
the applicant’s only son amongst the respondents, supports the application. For
the sake of convenience, I will refer to the first to the third respondents as “the
respondents”,
4. In short, the determination of the parties’ respective rights hinges on the proper
interpretation of the will of the testator. The background facts leading up to
these proceedings are set out below.
Factual Background
5. The applicant is the surviving spouse of the testator with whom she was
married out of community of property on 8 December 1984 . She is the
biological mother of the fourth respondent who was born out of the applicant’s
marital relationship with the testator. The first , second and third respondents
are the stepsons of the applicant who were born out of the testator’s previous
marriages.
6. The testator died testate on 22 September 2013. Since 2004 until his death, the
testator lived with the applicant , and they together conducted a guesthouse
business from the property. On 8 February 2013, the testator executed his last
Will and Testament, which is the subject of these proceedings.
7. In terms of the will the testator nominated the first and the fourth respondents
as executors of his estate. The testator bequeathed the entire estate to the four
respondents in equal shares subject to the special bequest of usufruct in favour
of the applicant as mentioned above. Upon the death of the testator on 22
September 2013, the first and the fourth respondents were duly appointed as
executors of his estate.
8. The will contains the following relevant provisions:
“I hereby bequeath my entire estate movable and immovable property , that
which I now possess or may possess in the future , whether in expectancy,
contingency or otherwise , whether situate and nothing excepted to my four
sons; Walter Reginald Hart , Robert George Hart, Toby Edward Hart and
Brendon Hart, in equal shares.”
9. The will also contains a special bequest which provides as follows:
“SPECIAL BEQUESTS:
1. I wish for my wife, Margaret, to enjoy the full usufruct of all my assets upon
my death. She may dispose of any assets and invest the proceeds in any
other asset that she wishes with the proviso that the Executor/s of my estate
approve of the investment, which approval shall not be unreasonably
withheld. The purpose of this proviso is to ensure as best as possible that
the capital is preserved. However, the comfort and well -being of my wife,
Margaret, is to be the utmost considered criterion by my executor/s.
Upon Margaret's death, the entire proceeds of the remaining assets in my
estate shall resolve (sic) on my four sons in equal shares as provided for
above.”
10. The testator’s estate was wound-up. Pursuant to the directions of the will, the
liquidation and distribution account was finalized and lodged with the Master of
the High Court. Th e transfer of the property was registered accordingly in the
names of the respondents on 31 July 2015 . The Notarial C ession of Usufruct
recording the rights of the applicant under the special bequest was duly
registered on 31 July 2015 , and as such, the applicant enjoys full usufructuary
rights over the property. Consequently, the four respondents who are the heirs
are now the joint owners of the property in equal shares , subject to the
provisions of the special bequest in favour of the applicant.
Applicant’s Submissions
11. The applicant avers that she has been running a guesthouse business from the
property for the past 20 years and continued doing so for a living after the death
of the testator. She is now 78 years of age and contends that due to her age,
she is now unable to run the guesthouse business on a 24/7 basis. She further
contends that the option of employing a competent manager to run the
guesthouse is not economically viable for the business, as according to her, the
average income generated out of the guesthouse was insufficient for that
purpose. She further states that at this stage of her life, she needs financial
certainty without working in order to continue with her life.
12. During 2023 , the applicant decided to sell the property with a view to
reinvesting the proceeds of the property in a financial investment wherefrom
she would use the interest derived for her living income . According to the
applicant, the sale is in exercise of her right in terms of the will and special
bequest, and in line with the pursuit of her comfort and well-being as wished for
by her late husband, the testator. In pursuit of this idea , the applicant procured
the purchaser of the property w ho is willing to purchase the property at the
purchase price of R17 million.
13. Apprehensive that the first to the third respondents might not be disposed to
agreeing that the property be sold, t he applicant , through her legal
representatives, addressed an email correspondence dated 22 M ay 2023 ,
inviting the respondents to a virtual meeting to resolve the impasse. The email
reads as follows:
“Dear Messrs Hart
We act for Margaret Hart.
In light of the impasse which has arisen in respect of Margaret's entitlement
under the w ill of your late father , Peter Hart, and the notarial Cession of the
usufruct bequeathed to her in terms of such w ill, our advice has been sought
in regard to Margaret's legal position under the s aid instruments. I would like
to invite you to a T eams meeting for the purposes of resolving the deadlock
which has been reached.
It is Margaret's wish not to commence with any l itigious process, which is
inherently acrimonious, and is likely to negatively impact family relations ,
without a final attempt at resolving this matter amicably.
In the circumstances, kindly let the writer know by no later than Wednesday
31 May 2023, per return of email, if you are amenable to resolving this matter
without the need for litigation. Should we not receive a response from you by
such date, Margaret shall accept that you do not wish to resolve this matter
without the intervention of a court of law.
Yours faithfully
…”
14. The first to third respondents responded to the above correspondence through
their attorneys by a letter dated 8 June 2023, where they indicated the ir
amenability to the proposed meeting . The respondents noted however, that
they did not agree with the issues raised for discussions. Notably the
respondents’ letter reads as follows:
“1. Thank you for your e-mail of 7 June 2023.
2. Our clients are amenable to a Micros oft Teams m eeting. We will revert to
you with the date, and time on which our clients will be available.
3. We note the issues we should wish to raise for discussion . Would you not
agree with all of the issues-- although this is perhaps a matter of semantics.
4. Our clients regard the most important question which needs to be decided as
being the correct interpretation of the Will, and in so doing the identification
of the dominant clause. The question then would be how the dominant
clause is modified by the usufruct w hich was conferred upon your client, and
her rights thereunder.
5. Our clients do not accept that your client , as the usufructuary, has a warrant
to sell the property unless this is necessary for the purposes of providing her
with funds which she absolutely requires for the purposes set out in the Will.
6. Our clients have been advised that they are required to exercise a discretion
in this regard. This discretion must be exercised in light of the prevailing
facts, which will include your client’s reasonable financial requirements.
7. We therefore respectfully request to provide us with a complete statement of
your client’s monthly expenses, and of her assets and income. Our clients
are obviously prepared to sign a nondisclosure agreement which w ill prevent
them from disseminating this information to any other person . We invite you
to draft a suitable NDA. If you prefer for us to draft such a document, we will
be happy to oblige.
8. We do not agree that the Will permits her to do so using the usufruct for this
purpose.
9. In fact, we have taken coun sel’s opinion which is to the effect which is to the
effect (sic) that your client cannot simply sell the property and invest the
money and then live off the interest and /or capital . The W ill expressly
prohibits that, stipulating that the proceeds of the sale must be invested in an
alternative asset ---which our clients, as t he remaindermen, must approve.
Provided that the agenda is expanded to include these issues our clients
have no objection to meeting either in person or by teams or in front of the
mediator.
Yours faithfully
…”
15. The above correspondence exchanged between the parties was the beginning
of the many correspondence exchanges that followed. Upon receipt of the letter
dated 17 January 2024, from the respondents’ attorneys, the applicant realised
that the respondents were opposed not only to the proposed investment of the
proceeds of the sale of the property but the sale itself. She then approached
this court for appropriate relief.
Respondents’ Submissions
16. The respondents dispute the applicant ’s right to sell the property without their
consent as they contend that her right t o sell the property is not unfette red.
They cont end that the applicant ’s interpretation of the will is fl awed, in that it
fails to give proper effect to what they consider to be the t estator’s true
intention, which a ccording to the respondents, is evidenced by the dominant
clause which vests the estate in the four sons. According to the respondents,
the dominant clause sought to strike a balanced and equitable equilibrium that
would ensure that the rights and interests of the heirs are not subordinated to
the unilateral desires of the applicant through the special bequeath.
17. The respondents aver that in interpreting the will, the court should consider the
context, more particularly the factors that were known by the testator when he
made the will. According to the respondents , the testator was a seasoned
businessman in property and as a property valuer and estate agent, the testator
knew that the owners of the property had to consent to its sale. According to the
respondents, the intention of the testator was to enable them to veto any
proposed sale and investment of the proceeds, because the testator k new that
any sale of the property and inv estment of the proceeds would affect their
rights. They argued that the testator wanted to ensure that the capital would be
preserved a nd protected against the risk of erosion by ensuring that the
applicant’s entitlement to usufruct is balanced with the need to safeguard the
interests of the heirs.
18. The respondents went at length to seek to illustrate by extrinsic evidence that
when making the will the testator harboured concerns regarding the applicants’
brother’s influence over her, and that the applicant had propensity to be
influenced by her brother to use his estate to financially support him with
various ‘dubious’ financial endeavours at their expense as heirs. According to
the respondents, these con siderations weighed heavily in t heir father’s mind
when he executed the will, as his intention was not to provide the applicant with
any money but merely with usufruct over their property.
Issues
19. The central issue is whether on proper construction of the will, the applicant has
an unfettered right to insist on the disposal of the property despite the fact that
the first to the fourth respondents are re gistered owners of the property;
whether the special bequest as contained in the will endows the respondents
with a right to consent to the sale of the asset and the re -investment of the
proceeds; whether the respondents have no right to refuse to honour the
applicant’s decision to sell the property at a market related price ; and whether
the approval of the applicant’s decision to invest the proceeds of the proposed
sale of the property is unreasonably withheld by the respondents.
The applicable legal principles in the interpretation of the Will
20. The cardinal principle in construing a testamentary document is to ascertain
from the consideration of it in its entirety, the true intention of the test ator.1
Reference to the will as a whole may result in the court departing from the
literal meaning of the particular word or phrase in the will or in some or other
manner modifying the meaning of the language . However, in the interpretation
of a will the object is not to ascertain what the testator meant to do , but his
intentions as expressed in the will.2
21. The dominant clause must be given the overriding effect throughout the will and
its effect must not be modified nor its meaning strained because there are other
clauses in the will which apparently require this to be done, unless it is quite
clear from the other clauses that the testator so intended.3
1 Corbett et al- The Law of Succession in South Africa, 3ed, 704
2 Corbett et al- The Law of Succession in South Africa, 3ed, 703
3 In re Estate van Aard t 1925 CPD 250; Ex parte M elle 1954 (2) SA 329 (A); Staden NO and Othera
1984(4) SA 507 (T) 511. Corbett et al- The Law of Succession in South Africa, 3ed, 703 (where t hese
authorities are cited)
22. In terms of the ancient armchair evidence rule of the interpretation of the will,
the court is entitled to put itself in the testator’s armchair and have regards to
the material facts and circumstances known to the test ator when he or she
made the will.4 However, in Lello & Others v Dale s NO 1971 (2) SA 330 (A) at
335D-E, t he Appellate Court warned that the admission of the armchair
evidence does not mean that the intention of the test ator may be sought by
reasoning or conjecture not founded upon the scheme in terms of the will.
23. Where the terms of the will are clear and unambiguous the court is not entitled
to look at the surrounding circumstances for external facts to show that the
testator must have had some different intention.5
24. In the process of interpreting a will the general rule is that no evidence outside
the will is normally admissible to explain the meaning or intention of the
testator, unless in exceptional circumstances . In this regard , in Allen v Estate
Bloch [1970] 2 SA 376 (C), Corbett J stated the legal position as follows:
“Briefly the position is as follows : Basically, the duty of the court is to ascertain
not what the testator meant to do when he made his will but what his intention
is, as expressed in the w ill. Consequently, where his intention appears clearly
from the words of the w ill it is not permissible to use evidence of surrounding
circumstances or other external facts to show that the testator must have had
some different intentions. At the same time no will can be analy sed in vacuo.
In interpreting a will the Court is entitled to have regards to the material facts
and circumstances known to the testator when he made it: it puts itself in the
testator's armchair. Moreover, the process of interpretation invariably involves
the ascertainment of the association between the words and external objects
and evidence is admi ssible in order to identify these objects. The process of
applying the w ords of the will to external objects through the medium of
extrinsic evidence ma y reveal w hat is term ed a latent ambiguity in that the
words, though intended to apply to one object, ar e in fact equally capable of
applying to two or more objects ( known technically as an ‘equivocation’) or in
4 Allgood v Blake (1873) LR 8 Exch 160 at 163 (referred to with approval in 1945 AD 201)
5 LAWSA, 2nd ed 31 p287 at para 408; Allen v Estate Bloch [1970] 2 SA 376 (C)
that words do not apply clearly to any specific object, as where they do not
describe the object or do not describe it accurately . In both these instances
additional extrinsic evidence is admissible in order to determine, if possible,
the true object of the bequest, but except in the case of equivocation , such
evidence may not include extrinsic declarations of the testator’s intention.”
25. This brings me to the issue of whether on the words expressed in the will, the
applicant enjoys an unfettered right to sell the property. The respon dents
themselves argued that the testator made a calculated move when he made
the will. According to them, the testator did not want to leave the applicant with
any disposable cash because of his fear that she would be easily influenced by
her brother. That was denied by the applicant to be the case . If indeed that is
so, surely in such circumstances she enjoys an unencumbe red or unrestricted
right to sell the property. In fact, that is sanctioned by the special bequest as
the testator did not want the applicant to fall into hardship, but to enjoy the
comfort she was accustomed to when the testator was alive. When the will ,
including the special bequest , is interpreted purposefully, the property was
meant to cushion the applicant in times of need.
Whether the applicant’s right to dispose of the property is subject to the
consent of the respondents
26. The a pplicant contends th at in terms of the will , she is entitled to sell the
property at a market related price and invest the proceeds on another asset of
her choice. This, according to the applicant, is the benefit of the “full usufruct” of
all the testato r’s assets as envisaged by the testator in his will . The applicant
further contends that the respondents’ right is only in relation to the approval of
the investment of the proceeds of sale, not the sale itself. According to the
applicant, the right to insist on the sale of the property is buttressed by the
provision of her husband’s desire as expressed in the will to the effect that her
comfort and well-being is to be the “utmost considered criterion” by the
executors.
As stated above, t he respondents contend that the applicant’s right to dispose
of the property is not unfettered. They argue that the dominant clause in the will
should be accorded its weight as the most direct and unequivocal expression of
the intention of the testator, and as such , its effect should not be whittled down
by the special bequest. This principle was well pronounced in Ex Parte Melle
and Others 1954 (2) SA 329 (A) at 334, and cited with approval at Schaumberg
v Stark 1956 (4) SA 462 (A) at 468 as follows:
“full effect should be given to the dominant clause which bequeaths the legacy
or institutes the heir and that its effect should not be modified nor its meaning
strained because there are other clauses in the will which, apparently, require
this to be done, unless it is quite clear from those other clauses that the testator
so intended.'
27. I take the view that t he clause which bequeaths the entire estate to the four
respondents in equal shares is the dominant clause in the will . Full effect
should be given to the dominant clause which bequeaths the legacy or
institutes the heir and its effect should not be modified nor its meaning strained
because there are other clauses in the will which apparently require this to be
done, unless it is quite clear from these other clauses that the testator so
intended.6
28. The pertinent question, therefore, is whether the effect of the dominant clause
is whittled down by the special bequest , and if so, whether the testator’s
intention to limit the effect of the dominant clause as expressed in the special
bequest are unclear and ambiguous.
29. In terms of the special bequest, the applicant is given the full usufruct in the
assets of the testator’s estate during her lifetime . The will directs that u pon the
applicant’s death the entire proceeds of the remaining assets in the estate shall
devolve on all the four respondents in equal shares. It is clear from the words
used in this clause that t he effect of the dominant clause is limited, in that a
6 De Waal et al: LAWSA (Vol 31: Wills and Succession) (First re -issue) at paragraph 376, Corbett et
al: The Law of Succession in South Africa (2nd Edition) at p447.
special bequest makes the full ownership rights of the respondents to the
remainder of the testator’s e state to take effect only upon the dea th of the
applicant.
30. In my view the intention of the testator as expressed in the will is clear and
unambiguous. It was to bequeath the entire estate to the four respondents in
equal shares, but to limit the effect of the bequest to be subject to the full
usufruct as expressed in the special bequest. This in my view shows that the
intention of the testator was to restrain the full effect of the dominant clause by
what is referred to by the testator as ‘full usufruct’. My view is fortified by the
testator’s express words that upon the applicant’s death, the entire proceeds of
the remaining assets in his estate shall devolve on the four respondents in
equal shares as provided for in both the dominant clause and the special
bequest. I note that in the will the testator used the words “…my estate shall
‘resolve’ on my four sons…” . I take it that the testator meant “devolve” instead
of “resolve”, for no sense can be made out of the use of the word ‘resolve’ in
that sentence.
31. In terms of common law, t he usufruct entitles the usufructuary to have the use
and enjoyment of another person's property (usus) and to take its fruits
(fructus).7 In other words, the usufructuary rights go beyond the right to use of
the property but extends to the right to enjoyment of its fruits. In casu, it seems
to me that the applicant , now that she is unable to enjoy the fructus by
operating a guest house business on the property due to her old age, she
seeks to enjoy the fructus by disposing of the property and re -invest the
proceeds thereof in another asset and enjoy interest as fructus.
32. I am mindful of the fact that in law, w hen the usufruct is terminated, the
usufructuary property has to be restored salva rei substantia to its owner. Thus,
ordinarily the u sufructuary is not allowed to consume or destroy the property ,
adversely affect its value, or alter its character. However, in casu the situation is
unprecedented or out of the ordinary, in that in his will, the testator went beyond
7 Vairetti v Zardo NO and Others (12423/2007) [2010] ZAWCHC 146 (12 April 2010) at para 27
bequeathing just the usufruct. He awarded the applicant an extraordinary right
to dispose of the asset by directing that the applicant may dispose of any asset
and invest its proceeds in any other asset she wishes , as long as the capital is
preserved.
33. Essentially, the testator gave the usufructuary a right to alter the character of
the property by disposing of the property and invest the p roceeds in any other
asset. This is of course with the proviso that the investment of the proceeds of
the d isposed of asset ha s to be approved by the executors of the estate in
order to ensure that as best as possible the capital is preserved.
34. The provisions of the will do not present any conflict with the provisions of the
dominant clause, in that the respondents are the heirs of the entire estate , and
their ownership of the estate is intact . The applicant’s case does not in any
event contest the provisions of the dominant clause, and the right of ownership
of the respondents to the estate . The applicant merely wants to e xercise t he
usufructuary rights as contained in the notarial bond.
35. Thus, in a case like the present, where the special bequest of usufruct is clear,
and is not in conflict with the dominant clause , the intention of the testator was
to have the co-existence of the dominant clause and the special bequest in the
will.
36. In resisting the sale of the property, the respondents also contend that, based
on extrinsic evidence , the testator was a businessman trading in property.
According to the respondents, as a businessman in property, the testator must
have known that as owners of the property, the respondents would have to
consent to the sale of the property. As such , so argue the respondents, the
applicant may only dispose of the property with the consent of all four
respondents who are the registered owners.
37. The respondents further argued that for them to decide on the approval of the
investment, they have to exercise a discretion to consent to the sale itself. This,
according to the respondents, is so because as the owners of the property, and
thus parties who have an interest in the property, they have a duty to ensure
that the preservation of the capital is not compromised. It seems to me that the
respondents’ argument is premised on the conjunctive interpretation of the right
to sell and right to approve the investment of the proceeds a s expressed in the
will.
38. Indeed, in the normal course of events , consent of the owner has to be given
for the sale of the owner’s property. A third party would not dispose of the
property without the consent of the registered owner. However, in this instance,
the right to dispose of the property was given by the testator even before the
bequeathed property was registered in the names of the f our respondents. It
then follows that no consent is required from the registered owners of the
property as they became conditional owners after all ha d been said and done
by the testator. Ev idently, even though they are the registered owners of the
property, the respondents do not have possession and use of the property. The
executor envisaged the full taking ov er and control of the property after the
death of the applicant.
39. The legal position is that in the interpretation of a will the object is not to
ascertain what the testator meant to do, but his intentions as expressed in the
will. Where the intention of the testator appears clearly from the words of the
will, as is the case in casu, it is not permissible of the court to use evidence of
surrounding circumstances or other external facts to show that the testator
must have had some different intentions. I repeat, n owhere in the will is an
expression that the disposal of the asset is subject to the consent of the heirs.
The respondents’ contention that the applicant’s right to dispose of the asset is
subject to their consent is without merit.
40. In the circumstances, I do not find the applicant’s proposed insistence of the
disposal of the property as inconsistent with the intention of the testator as
expressed in the will. In my view, the words expressed in the will are clear and
unambiguous. In terms of the will, the applicant may dispose of any asset. The
right to dispose of any asset is a separate issue and an absolute discretion of
the applicant. It further states that the applicant may then invest the proceeds of
such disposal in any other asset that she wishes, provided that the executors of
the estate approve of the investment . The intention of the testator, as gleaned
from the words expressed in the will , is to give the applicant a right to dispose
of any asset including the property in question. Thus, the respondents have no
right in terms of the will to frustrate the sale of the property.
41. I am not persuaded that the extrinsic evidence postulated by the respondents,
which is largely speculative and deviates from the words as expressed in the
will, is permissible in ascertaining the intention of the testator. On the words as
expressed in the will, it cannot be concluded that the testator intended that the
decision of the applicant to sell the property would be subject to the consent of
the respondents. I am satisfied that based on the clear words expressed in the
will, the testator inte nded to give his wife , the applicant , an absolute right to
dispose of the property.
Duty to invest the proceeds and the preservation of capital
42. The special bequest enjoins the applicant to, upon disposal of any asset, invest
the proceeds thereof in any other asset she wishes , with the proviso that the
executors of the estate approve of the investment . According to the will, t he
purpose of the proviso is to ensure as best as possible that the capital is
preserved. On the proper interpretation of the special bequest clause, t he duty
to preserve the capital of the estate lies on both the applicant and the
respondents, inter se . On the one hand, the applicant has to invest the
proceeds of the sold asset on any other asset. On the other, the respondents
must approve of the investment, which approval should not be unreasonably
withheld. The expressed rationale in the will is that the comfort and well -being
of the applicant in this regard is of the utmost considered criterion.
43. The respondents are opposed to the proposed investment model. Their
contention is that as a businessman in property, the testator must have meant
that the investment “on any other asset” to mean on any other immovable
property, because, so goes the argument , by asset the testator meant the
alternative immovable property and not financial investment . The ext rinsic
evidence approach proposed by the respondents is not convincing on two
grounds. Firstly, the testator’s words are clear, namely that the applicant may
invest on any other asset she wishes . This does not require application of
extrinsic evidence. Secondly, the proposed interpretation is inviting the court to
impermissibly invoke a meaning outside the expressed words in the will. Given
that the applicant has a right to full usufruct on the asset , the respondent’s
proposed interpretation does not conceive how the applicant would enjoy the
fructus and make a living in re-investment on the alternative property.
44. On proper construction of the words as expressed i n the will , the intention of
the testator is clearly that the applicant should invest the proceeds of the
disposed of asset on any other asset. The contention that by “any other asset”
the testator meant “any other property” is in my view an overstretch of
interpretation. This overstretched inte rpretation deviates from the clear and
ordinary language used in the will and is not justified. This is more so that in the
ordinary business language, assuming that the testator was a seasoned
businessman as contended, the word ‘asset’ has wider meaning than just
immovable property.
45. The further argument of the respondents in resisting the investment proposed
by the applicant is that the investment in financial securities will erode the value
of the capital due to inflation and compromise the testator’s ideal of reservation
of capital. The applicant averred that she enlisted the services of investment
consultants and tax practitioners to develop an investment structure that would
ensure that the c apital is preserved , and interest is derived for her benefit.
Whilst the respondents dispute the applicant ’s averments, there is no dispute
that the investment structure that addresses applicant ’s and the respondents’
interests is possible. The real issue taken by the respondents is that they had
not been involved in the process of identification and /or development of the
investment structure.
46. It is not for this court to determine which investment should be approved by the
respondent. What the court is required to do is to provide proper interpretation
of the will, and in so doing to determine whether, on proper inte rpretation of the
will, the approval is unreasonably withheld . In approaching this issue, the court
has to bear in mind, inter alia, the testator’s expressly desired comfort and well-
being of the applicant as the usufructuary on the one hand and the preservation
of capital for the benefit of the respondents as the bare dominium holders on
the other.
47. It is not in dispute that the applicant makes a living out of the guesthouse
business on the property. She is now 78 years of age and is now unable to run
the guest house at that age . S he seeks to invoke he r usufructuary rights
provided for in the special bequest so as to derive different means of financial
benefits out of the usus of the capital of the asset and receive fructus in the
form of interest. The applicant has proposed to invest the proceeds through a
financial investment structure where, as an usufructuary, she would preserve
the capital and use the interest as fruits of the investment.
48. In her submission the applicant has provided evidence that she took
reasonable steps to secure an investment model that seeks to ensure that the
capital is preserved. The respondents did not provide any evidence that the
investment in financial securit ies by its very nature erodes capital. Given that
the proposed investment model is intended to preserve the capital and utilise
the interests, and that reasonable safeguards had been put in place to preserve
the capital, the argument that the proposed investment was not intended by the
testator is not sustainable.
49. In the circumstances, to the extent that the respondents insist that the proceeds
of the sold property be i nvested only on immovable property, such approval is
unreasonably withheld. The investment in any other asset means in any asset
that would enable the applicant to enjoy the fruits as usufructuary rights on the
capital asset, provided that the capital is preserved.
Costs
50. The principle is that costs follow the result . There is no reason why this
principle should not apply in this matter. The applicant has succeeded in this
application. Despite many reasonable attempts by the applicant to present
possible solutions to the dispute , the respondents have displayed a steadfast
opposition towards the resolution thereof. Instead, the respondents adopted a
nonchalant attitude and invited the applicant to approach the court for the relief
the applicant so ught. There is no reason therefore why the first, second and
third respondents should not pay costs of this litigation.
51. I am also satisfied that the complexity of th is matter and the magnitude of
issues that had to be dealt with warrant that costs be awarded in favour of the
applicant as between party and party at the High Court Scale B.
52. In the result, I make the following order:
1. It is declared that:
1.1 the first to the fourth respondent’s ownership rights in Erf 1[...]
Camps Bay, also known as “E[...]”, commonly known as F[...] Close,
Camps Bay is limited by and subject to the applicant’s rights arising
from the special bequest recorded in the will of the Late Peter
Dionysuis Hart and reflected in the title deed to the property and
Notarial Deed 685/2015;
1.2 in terms of the special bequest the applicant is, despite the fact that
the first to the fourth respondents are the registered owners of the
property, entitled to insist on the disposal of the property;
1.3 despite the fact that the first to the fourth respondents are the
registered owners of the property, the first to the fourth respondents
have no right to refuse to honour the applicant’s decision to sell the
property at a market related price, and must take all steps
necessary to give effect to the sale and transfer of the property
(including the signature of any deed of sale, transfer documents
and making payment of any costs, fees and taxes from the
proceeds of the sale) should the applicant decide to sell the
property and upon her request;
1.4 despite the fact that the first to the f ourth respondents are the
registered owners of the property , they are not entitled to use the
proceeds of any sale of the property (capital) as contemplated
above until the applicant’s death and that the applicant is entitled to
use the full fruits (intere st) arising from the re -investment of the
capital as contemplated in the special bequest.
1.5 the investment of the proceeds of the property as contemplated in
the special bequest must be approved by the first and the fourth
respondents as the “executors” con templated in the special
bequest;
1.6 the first and the fourth respondents must not unreasonably withhold
the above consent, provided that the executors have taken
reasonable steps to ensure that the capital is preserved as best as
possible for the benefit of the first to the fourth respondent s, but
that the applicant’s comfort and well -being should be the “utmost
considered criterion” for such approval;
1.7 the first and the third respondent’s refusal/failure to sign the Deed
of Sale dated 5 December 2023 is in breach of/or contrary to the
provisions of the special bequest;
1.8 the first to the third respondent’s refusal/or failure to approve the
proposed re -investment of the capital/or proceeds of the sale as
specifically advised, is unreasonable and in breach of/contrary to
the provisions of the special bequest; and,
1.9 after the re -investment of the capital realised from the sale of the
property the applicant has a right to deal with the interest of the
capital so invested subject to the provisions of the will until her
death, including the right to insist that any investment be disp osed
of subject to the provisions of the special bequest.
2. It is ordered that:
2.1 the first to the third respondent must sign the Deed of Sale
presented by the applicant within 10 days of granting of this
order and thereafter sign such documents and take all such
steps as are necessary to ensure the sale and transfer of the
property in terms of the sale, failing which the Sheriff of this
Court is authorised to sign any such document and take any
such step on their behalf; and,
2.2 the first respondent an d the fourth respondent, and in the
absence of any of them, alternatively the first, the second and
the third respondents shall approve the re -investment of the
capital as realised, and shall sign such documents and/or take
all such necessary steps to give effect to such investment, failing
which the Sheriff of the Court is authorised to sign any such
document and take any such step on their behalf.
3. The first to the third respondents are ordered to pay the applicants costs
as between party and party at the High Court Scale B.
________________________
MAPOMA AJ
Acting Judge of the High Court
Appearance
For the Applicant : LN Wessels
Instructed by : Mathews Enslin Inc
For the 1st – 3rd Respondents: P Tredoux
Instructed by : Ebersons Attorneys