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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No :2025 -012995
In the matter between:
RUANSA VAN EEDEN Applicant
and
ALETHA CATHERINA OOSTHUIZEN First Respondent
SANLAM PRIVATE WEALTH (PTY) LTD Second Respondent
MASTER OF THE HIGH COURT , WESTERN CAPE Third Responde nt
Coram: NUKU J
Heard on: 20 February 2025
Delivered on: 28 March 2025
JUDGMENT
NUKU, J
Introduction
[1] The applicant was involved in a romantic relationship with the late Wilfred
Heathcoate Craythorne (the deceased ) who passed away during November 2024. At
the time of the death of the deceased , the applicant resided with her two children at a
rented apartment situated at
………………………………………………………………... (the Tokai apartment ). The
deceased resided in his property situated at ………… ……...…………….. (the property )
and the applicant had a set of keys to the property (the property keys ).
[2] When the applicant learnt about the death of the deceased, she took the set of
the property keys that had been in the possession of the deceased into her possession.
Thereafter, she gave one set of property keys to the brother of the deceased, Ryan
Craythorne ( Ryan ). This was so that the family of the deceased could occupy the
property when coming to attend the funeral. As more of the family members of the
deceased came, one set of keys became unm anageable and Ryan requested the
second set of the property keys from the applicant , which she provided on 2 December
2024.
[3] At some point in time when the applicant enquired about the return of the
property keys from Ryan, the latter advised that the property keys would, on the advice
of the second respondent, be safely stored until the appointment of an executor to the
estate of the deceased.
[4] Considering the failure to return the property keys an act of spoliation, the
applicant brought this urgent spoliation application seeking the return of the property
keys so as to restore “ her unfettered access to and occupation of the property ”.
The applicant further seeks wide-ranging relief including :
4.1 a declaratory order that she is entitled to continue to occupy the property with her
children ;
4.2 interdict against the first and second respondents directing them :
4.2.1 not to interfere with her occupation of the property ;
4.2.2 not to enter the property;
4.2.3 to provide her with the passcodes and passwords of the security system
that has been installed at the property;
4.2.4 to provide her with a copy of the divorce order recording the dissolution of
the marriage between the deceased and M alinda Botha;
4.2.5 to retur n the vehicles belonging to the deceased as well as some items
listed in annexure X to the founding affidavit ;
4.2.6 to disclose to her and the third respondent , the whereabouts of the
property of the deceased that has been removed from the property, and
which is not listed in annexure X to the founding affidavit; and
4.3 An order directing the third respondent to :
4.3.1 facilitate the reporting of the deceased’s estate by her ; and
4.3.2 appoint an executor within 10 (ten) days of the granting of the order , which
executor shall not be the first respondent, second respondent or any of the
siblings of the deceased.
[5] The application is opposed by the first respondent who disputed urgency, raised
a point in limine of misjoinder and denied that the applicant had made out a case in
respect of any of the relief she seeks.
[6] Whilst there is merit to the urgency and misjoinder points raised by the first
respondent , I have elected to determine the application on the merits. This has been
partly informed by the fact that the determination of this application on urgency and
misjoinder points would, as shall become clear later, delay the inevitable. Sometimes
the interests of justice demand speedy resolution of disputes rather than prolonging the
agony that goes along with litigation. Before considering the merits of the application, it
is necessary to set out the factual background.
Factual Background
[7] This matter has its genesis on the passing away of the deceased on 18
November 2024. The surviving family of the deceased includes his mother, the first
respondent, his siblings Ryan, Mr Sean Craythorne ( Sean ), Mrs Charmaine Taverner
(Charmaine ) and his nephew Mr Warren Craythorne ( Warren ), none of whom reside in
South Africa except the first respondent.
[8] In the process leading up to the funeral service of the deceased, the applicant
advised Sean and Warren that they could stay at the property. In this regard , a
WhatsApp message she sent to Sean, on 20 November 2024, reads “ Dear Sean, I’m so
delighted that you and Michael are coming. You are welcome to stay at Wilfred’s house
for the duration of your stay. I have said the same to Warren when he told me that he is
coming. Love Ruansa .”
[9] On 21 November 2024, the applicant had a long telephonic conversation with
Warren regarding the funeral arrangements when the latter offered the former a loan of
about R200 000.00 to tie her over the immediate period. The applicant declined the loan
offer advising that she had withdrawn some money from the bank account of the
deceased.
[10] Charmaine became aware of the fact that the applicant had withdrawn some
money from the ban k account of the deceased and on 22 November 2024, she voiced
her disquiet about the fact that the applicant had withdrawn monies from the bank
account of the deceased. On the same day, Ryan advised the applicant that he would
be arriving in Cape Town on 27 November 2024. Ryan offered to assist with funeral
arrangements, an offer which he repeated the following day, 23 November 2024.
[11] On 27 November 2024, the applicant handed the deceased’s computer over to
Sean and she requested Sean to sign an acknowledgement of receipt which he did.
[12] On 1 December 2024, Ryan sent the applicant a message advising her that two
more family members (Frank and Michel) were due to arrive in South Africa and that he
required the set of keys, the remote control and the deceased’s cellphone. This
message which was in Afrikaans reads “Hi Ruansa, Frank en Michael kom Dinsdag en
ek wil asb die stel sleutels en remote wat jy het more by jou kom haal. Ook ek het Wali
se foon nodig vir bank access. Sal jy my laat weet hoe laat ek die goed kan kom haal by
jou en stuur asb vir my jou adres. Baie dankie lekker aan .”
[13] The applicant responded to Ryan on the same day advising him that he could
come to her house the following day before 13h00. Her message which was also in
Afrikaans reads “Hi Ryan, jy is welkom om more 13h00 na my huis toe kom en ek sal
eers met jou wil gesels om te verstaan. Ek vra mooi daat Wilfred se nagedagtenis asb
bewaar word in al ons interaksie … my adres is [...] R[...] , 2[...] V[...] R[...] Tokai .”
[14] On 2 December 2024, the applicant sent Ryan a message requesting him to
bring some items from the property and enquired whether Ryan would be coming alone.
Her message to Ryan reads “ Hi Ryan, sal jy asb ook my briefies en kaartjies aan
Wilfred oor die jare saambring en dit goue ring wat ek vir hom gekoop het? Die briefies
en kaartjies het hy in sy laaie gebere (bedkassie en klerekas) en die ring was laas in sy
kas waar sy parfume staan. Dit het sentimentele waarde vir my. Dankie ek sien jou
13h00. Kom jy aleen ?” Ryan responded advising that he would be accompanied by
Warren.
[15] The applicant met with Ryan and Warren on 2 December 2024 at her home that
is the Tokai apartment . At this meeting , she handed over a sum of R16 983 to Ryan. It
was also at this meeting that the applicant handed over the second set of the property
keys to Ryan. After this meeting, the applicant sent Ryan’s wife a message, the English
translated version of which reads “Your husband is amazing … after talking to Ryan
today it’s going to get better. As if it was Wilfred sitting in front of me saying don’t worry,
I’ve got this .”
[16] On 9 December 2024, Ryan approached the second respondent for assistance
with the administration of the estate of the deceased. The second respondent formally
accepted this engagement on 12 December 2024 on the basis that it was to facilitate
the reporting of the estate, the filing of the necessary documents with the Master of the
High Court, providing guidance on the procedural requirements and ensuring
compliance with the Administration of Estates Act, 66 of 1965.
[17] On 10 December 2024, Sean sent the applicant the following message: “ Hi
Ruansa, can you please give us a list of the things you said were yours or gifts from
Wally. Charmaine and I are beginning to clear things out and I have found a homeless
charity that we want to donate things to. The house will possibly be rented while the
executors are working on sorting out the estate, therefore, the need to expedite the
process. Do you know who the stuffed toy bunny upstairs belongs to? Also do you have
a black coat here? Can you please let us know before Friday. Thank you .”
[18] The applicant responded to the above request in an email to Ryan dated 12
December 2024 advising that she is able to provide a basic list of some items and that it
is not possible to itemize everything at that point. The applicant went further to voice her
unhappiness about the fact that she had handed over the deceased’s cellphone, laptop
and her set of the property keys “ as all assets should be dealt with by an executor ” but
that she was also “ aware of the practicalities of having to sort so much in the transition
period before an executor is appointed ” and that this is the reason why she co -operated
with the requests to handover the belongings of the deceased. The email concluded by
saying:
‘I am available to provide support and assistance to your mom when you have all
returned home and, when I return to Cape Town, I will be in a position to arrange
the removal of my possessions and will, of course, be available to provide any
assistance you need regarding the house. As his life partner and the only related
person, other than your mom, who lives in the immediate area, I am best
positioned to take care of the house (and his cat) until the executor decides what
needs to happen to it next. Please ensure that my housekeys are returned to me
before your party leaves South Africa at the end of December 2024 .’
[19] On 13 December 2024, Ryan responded to the applicant’s email and copied the
representative of the second respondent, Ms Gillian Venter ( Ms Venter ) advising that
(a) he had appointed the second respondent to ensure fairness and compliance with
South African laws, (b) Ms Venter would act as a primary point of contact and that
because of her experience , she would be able to address all of the applicant’s concerns
in a professional and empathetic manner, (c) the planned cleaning of the property on 13
Decem ber 2024 was to preserve the estate’s integrity and prevent deterioration or loss,
and (d) Ms Venter had advised that all keys are to be safely stored together until such
time as the executor has been formally appointed, whereafter the property and movable
assets can then be dealt with as part of the estate administration process. He provided
the applicant with Ms Venter’s contact details and ended the email with the words
“Thank you for your understanding and cooperation during this challenging time. Please
do not hesitate to reach out to Gillian if you have any further concerns .”
[20] On 16 December 2024, the applicant called Ryan and among other things
informed Ryan about a discussion she had had with the deceased, between September
and November 2024, about her moving back to the property since her lease was
expiring in January 2025 as well as using some of the available space where the
deceased conducted his medical practice. She advised Ryan that, in line with that
discussion, she would have given notice to her landlady on 1 December 2024 with the
intention of moving out in January to stay with the deceased , something which was
disrupted by the death of the deceased. The applicant recorded this conversation which
they held in Afrikaans. An English translation of this message dealing with the property
has the applicant stating:
‘So I don’t know what your plans are with the house, all that I can think is that you
must have a problem with the house, it must be a huge headache because, I
can’t think that you can just rent out the house at this stage, and I can’t think who
would be better to look after the house, because I stayed there for years, I helped
Wilfred in the house to fix things…. I care about the house because it is Wilfred’s
place, it is a place with good memories for us, many special memories as a
family, so I don’t know , I think I am a solution for your problem, if it is a problem
for you, that you don’t know what to do with the house. You won’t find someone
better to look a fter the place than me given the fact that we went so far to talk
about you know, in January moving in together, yes, it is like, I know it is your
decision …’
[21] On 20 December 2024, Sean advised the applicant that he would be leaving the
following Sunday whereafter the property would be locked. Sean further advised the
applicant to send someone to collect boxes that he had packed for her. According to the
applicant, at this stage , she had been advised to seek legal advice and had then been
made aware, for the first time, of the full extent of her claims that she has in terms of the
Interstate Succession Act and the Maintenance of the Surviving Spouses Act. The
applicant responded to Sean by advising him that she had appointed attorneys and that
all further correspondence regarding her possession s should be directed to them.
[22] On the same day , the applicant’s attorneys emailed the second respondent
demanding (a) the return of the property keys by no later than 23 December 2024, and
(b) undertaking s to be provided by no later than 12h00 on 23 December 2024 that all
items belonging to the applicant or the deceased that had been removed from the
property would be returned, and that there will be no further interference with either the
applicant’s or the deceased’s possessions and that nothing will be removed from the
property. The letter also requested the second respondent to advise the applicant’s
attorneys “ when letters of executorship have been issued so that our client can address
the executor/s regarding her claims .”
[23] The bottom of the email referred to above advised that the offices of the
applicant’s attorneys would be closing on 23 December 2024 until Friday, 3 January
2025 and that writer of the email would be returning to the office on 13 January 2025.
Ryan was copied in this email and he responded on 23 December 2024 advising that
(a) that the second respondent had been appointed as the Craythorne family
representatives in this matter and that the second respondent will be responding upon
her return in the new year, (b) the email address used for Ms Venter was incorrect and
he provided the applicant’s attorneys with the correct email address, and (c) that the
second respondent’s offices were closed until 13 January 2025. Ryan also forwarded
the email from the applicant’s attorneys to Ms Venter.
[24] On 24 December 2024, the applicant’s attorneys sent two emails to the second
respondent. The second email which was a follow up on an earlier email requested an
urgent response because of the claim that the applicant, as the life partner of the
deceased, has obligations in terms the Adm inistration of Estates Act which were being
hindered by the withholding of the property keys. The email further requested a copy of
the divorce order recording the dissolution of the deceased’s marriage to Malinda Botha
in England, United Kingdom .
[25] On 27 December 2024, the second respondent’s representative, Linky Sodi ( Ms
Sodi ) responded to the applicant’s attorneys advising, regarding the refusal to return
the property keys, that the property is owned by the deceased and that the deceased’s
mother, being the nearest blood relative, would be the beneficiary of the estate under
the Interstate Succession Act. Ms Sodi further advised that the estate had not been
reported to the Master of the High Court.
[26] The applicant’s attorneys responded to Ms Sodi on the same day advising,
among other things, that the withholding of the keys is unlawful and that they would be
proceeding to formally secure the return of same. The email further advised that the
applicant’s intention was to object to the appointment of the second respondent as the
executor of the estate of the deceased. The intended objection w ould be based on the
applicant’s view that the second respondent ha s a conflict of interest. The email
conclud ed by stating that “ As the life partner of Dr Craythorne, it is our client who is the
intestate heir to Dr Craythrone’s estate. It was accordingly correct that she retained his
personal belongings. It was misrepresented to her that the executor required the
possessions because, as you correctly point out, no executor has been appointed .”
[27] Ms Sodi responded to the above letter on the same day advising, inter alia, that
the second respondent “ will not be applying to be appointed as executors of the
estate …” She also dismissed the applicant’s claim that the second respondent was
conflicted as unfounded. She also advised that the applicant was welcome to lodge an
objection or her claim for maintenance against the estate with the Master of the High
Court .
[28] On 30 December 2024, the applicant’s attorneys addressed a further email to the
second respondent raising their concerns that the latter had not responded to the issues
raised by the former in the email of 27 December 2024. The email also referred to the
removal of some of items from the property and that “ without our client having keys to
the property, it is impossible for her to ascertain the extent of the items that have been
removed .”
[29] On 31 December 2024, the applicant addressed an email to Charmaine, Sean
and Ryan with the heading “ What would Wilfred have done ?” In this email , she
expressed her sense of disgust at how she had been treated by the Craythorne family
stating that:
“Each one of you has defiled Wilfred’s house – a house I’ve personally helped
him to fix, clean and organise over the years. I personally prepared and opened
the door to you for the duration of your stay in Cape Town. You deceived me with
your hypocrisy and short -lived and / or false care and concern for me and my
children. You misled me about your intentions for coming to Cape Town, knowing
that none of you, apart from Warren and Janene, had spent any meaningful time
with Wilfred in the past nine years…. Y et you felt entitled to enter his home,
remove and distribute his belongings and decide over his affairs, as though you
were close to him .”
[30] The second respondent reported the estate of the deceased to the Master of the
High Court on 13 January 2025.
[31] On 16 January 2025, the applicant’s attorneys addressed a letter to second
respondent stating that “ We have consistently reiterated how urgent it is that my client
be afforded access to the Constantia property and that her keys be returned to her. She
has been unlawfully deprived of her rights of possession in respect of the property .” The
email continued “ our proposal was that my client would be afforded access to the
property ‘sometime next week’, supervised by you when you could accommodate her,
to collect her belongings, but that you have a busy schedule … Unfortunately, it is not
appropriate for our client to have to wait for you to be available to accommodate her
access to the property … You have advised that Mrs Craythrone has a driver and
people to assist her. We have invited you to arrange for Mrs Craythorne to meet our
client at the Constantia property tomorrow, to allow our client access and for her to try
and collect Bella…. This proposal does not detract from our client’s rights to secure he r
keys, the documents she requires and that the movables she requires to be returned as
a matter of urgency… you have advised that your office has now reported the estate.
We have advised that our client too will report the estate. We are concerned that your
delay in responding to us is an to attempt to have the letters of executorship granted to
your client, despite us having advised of our client’s objection thereto. … kindly advise
us of the reference number for the estate as a matter of urgency .”
[32] Ms Venter responded t o the correspondence referred to above on 17 January
2025 advising that (a) the applicant’s attorney had not provided her with any evidence in
support of the applicant’s claim that she and the deceased were life partners that had
undertaken reciprocal duties of support, (b) as the applicant’s claim to life partnership
remains unsubstantiated, she has no right to access the property nor to be handed the
property keys, (c) that the first respondent, as the most likely beneficiary of the estate of
the deceased, has the right to possess the keys to take control of the assets before an
executor is appointed .
[33] On 20 January 2025, the applicant deposed to an affidavit substantiating her life
partnership claim. The affidavit was submitted to the Master of the High Court with the
documents reporting the estate of the deceased nominating the applicant as an
executrix.
[34] On 2 2 January 2025, the applicant’ s attorneys addressed a letter to the second
respondent attaching the affidavit substantiating the applicant’s claim to life partnership
and advising that they had been instructed by the applicant to secure her access to the
property so that her occupation of the property could be restored. The letter referenced
an agreement that the applicant had with the deceased that she could move into the
property with her daughter and that acting in line with that agreement, she ha d
terminated her lease.
[35] On the same day, Ryan, Sean and Charmaine responded to the applicant’s email
of 31 December 202 4 advising, inter alia, why the second respondent had been
appointed to assist, explaining reasons for securing the property and advising that they
would prefer than “ an amicable agreement be reached regarding your claims against
the estate to avoid lengthy and costly litigation expenses for the estate and yourself.”
[36] On 24 January 2025, the second respondent advised the applicant’s attorneys
that their l etter had been referred to the Craythorne family ’s legal representatives. The
application was launched on 30 January 2025 . Against the above background, I turn to
consider each of the applicant’s claims.
The Spoliation re medy
[37] There is something unusual about the applicant’s claim for the spoliation remedy
in that she does not seek restoration of her “peaceful and undisturbed possession of the
property ” but seeks the return of the property keys “so as to restore her unfettered
access to and occupation of the property .” That being the relief that the applicant seeks,
this court must determine (a) the availability of the spoliation relief in respect of a claim
for the restoration of access to property, and (b) whether the applicant was in
occupation of the property.
[38] Regarding the availability of the spoliation relief in respect of a claim for the
restoration of access to property, it was submitted on behalf of the first respondent that
a mandam ent van spolie does not protect access. This court was referred to De Beer v
Zimbali Estate Management Association (Pty) Ltd1 (De Beer ) where it was stated
that “ A summary of the above cases would seem to me to indicate that the mandament
van spolie is there to protect possession, not access .”
[39] The applicant’s claim to restoration of access to the property under the guise of
spoliation remedy is bad in law and the applicant could point to no authority in support
of a proposition that spoliation remedy is now available to protect access. This difficulty
resulted in the applicant chang ing her case somehow to suggest that her case was that
by having the property keys, she had physical control of the property with the intention
of deriving some benefit therefrom, and that on the authority of Vital Sales Cape Town
(Pty) Ltd v Vital Engineering (Pty) Ltd and Others2 (Vital Sales ), the spoliation
remedy is available to her. By the benefit to be derived, I assume the applicant refers to
the occupation of the property and this ties in with the claim for the restoration of her
occupation of the property.
1 De Beer v Zimbali Estate Management Association (Pty) Ltd 2007 (3) SA 254 (N) at para 54
2 Vital Sales Cape Town (Pty) Ltd v Vital Engineering (Pty) Ltd and Others 2021 (6) SA 309 (WCC)
[40] The applicant’s change of course is, however, una vailing because it is clear from
the exchange of correspondence that has been catalogued above that the applicant had
not been in occupation of the property at the time that the deceased passed away as
well as at the time when she gave the property keys to Ryan . When she was told that
the property was being cleared and requested to provide a list of her items which were
at the property at the time, she complied without a demur. She even suggested, on
more than one occasion, to Ryan that she is the person who would be best placed to
look after the property until the executor decides what is to happen to the property.
[41] Her claim to have occupied the property is further undermined by her evidence
relating to the discussion she had had with the deceased referred to above about the
possibility of moving in with the deceased during January 2025. This , if anything, is
proof that she had not been in occupation of the property even though she had the
property keys . In as much as she had the keys, she was not, at the relevant time, in
possession or occupation of the property. In my view , the applica nt’s claim for a
spoliation rem edy is contrived and not sustainable on the evidence presented.
The declaratory and interdictory remed ies
[42] Much of the applicant’s attention was dedicated to establishing that the deceased
was her life partner with the view of establishing possession of the property that nothing
was said to substantiate the applicant’s entitlement to the declar atory as well as the
interdictory remed ies. These claims appear to flow from the applicant’s claim that the
deceased was her life partner. The applicant, however, accepts that the issue of the life
partnership between her and the deceased is not one that this court is required to
decide in these proceedings.
[43] Without deciding an issue that would clothe the applicant with the necessary
standing to claim the se remedies , it is difficult to understand how the applicant can
establish the necessary requirements. Despite the applicant’s founding affidavit
spanning about 49 pages without annexures, not a single word , for example, is said
about the applicant’s prima facie right that will be harmed if the interdictory remedy is
not granted .
[44] The heads of argument filed on behalf of the applicant merely repeat the
requirements for an interdict and suggest that the first respondent has failed to deal with
the applicant’s claim for the interdictory relief without pointing to any averments made
by the applicant that can establish her entitlement to the interdictory relief. The situation
is worse when it comes to the declaratory relief as not even a single word is said to
substantiate the applicant’s entitlement thereto. In my view, the applicant’s claim for the
declaratory and interdictory remed ies did not even get out of the starting block s and
must accordingly fail.
Conclusion and costs
[45] Spoliation remedy is not designed to protect access. The applicant presented no
evidence that she had been in occupation of the property when she gave the property
keys to Ryan. There is thus no occupation of the property to be restored because of the
fact that the applicant was not in occupation in the first place . That must put an end to
any claim for spoliation on the basis of the applicant’s failure to establish peaceful and
undisturbed possession.
[46] The applicant failed to plead facts in support of her claim s for the declaratory and
interdictory remed ies with the result that the application fail.
[47] The first respondent has been successful, and, in my view, she is entitled to
costs. The applicant brought the application as an urgent application giving the
respondents not much time to respond. Th e applicant must have known that the first
respondent, who appears to be her main adversary, had no knowledge of most of the
allegations that she (the applicant) was making in her affidavit as she had had almost
no dealings at all with the first respondent . She must have known that the first
respondent’s opposition would invariably require consultation by the first respondent’s
legal team with the family of the deceased that lives outside the coun try. That the first
respondent was able to present her opposition within the truncated timeframes that she
was given c ould only have been made possible by the involvement of more than one
counsel to prepare her opposition. That being the case, the first respondent is entitled to
the costs occasioned by the employment of more than one counsel .
Order
[48] In the result , I make the following order:
The application is dismissed, and the applicant is to pay first respondent ’s costs to be
taxed on scale B and which costs include costs occasioned by the employment of two
counsel, where so employed.
L.G. Nuku
Judge of the High Court
APPEARANCES
For applicant: L Buikman SC
Instructed by: Catto Neethling Wiid Inc, Cape Town
For first respondent: J Bernstein and P Gabriel
Instructed by : Norman Wink Stephens , Cape Town
For second and third
respondent s: No appearance