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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER S: 15817/2020 & 15818/2020
REPORTABLE
In the matter between
N[...] N[...] NO PLAINTIFF
and
YULANDE AKTASH NO FIRST DEFENDANT
THE MASTER OF THE HIGH COURT SECOND DEFENDANT
and
N[...] N[...] PLAINTIFF
and
YULANDE AKTASH NO FIRST DEFENDANT
THE MASTER OF THE HIGH COURT SECOND DEFENDANT
JUDGMENT
Date s of hearing: 25, 26, 27 February , and 20 March 2025
Date of judgment: 22 April 2025
BHOOPCHAND AJ:
1. The Court is asked to adjudicate two cases, consolidated for trial . The First is
a standalone claim, and the second has three claims , all against the estate of the
late J[...] D[...] W[...] N[...] . J[...] N[...] (‘J[...]’) took his life together with that of his son
on 8 September 2019. The specifics of the tragic event are not relevant to the
adjudication of the claims instituted by N[...] N[...] (‘the Plaintiff’) in her representative
capacity and in her personal capacity. The Plaintiff was J[...]’s wife for about eight
years. She instituted a divorce action against him on 30 July 2019. The couple ’s son
was the late D[...] N[...] (‘D[...] ’), who died at the age of 7 years.
2. The claim under case number 15817/2020 concerns the ownership of
R1 712 000 (one million, seven hundred and twelve thousand rand). The Plaintiff
asserts that the money was gifted to D[...] as an investment in his education but was
unlawfully transferred by J[...] from D[...] ’s bank account. She asserts that the
amount rightfully belongs to D[...] ’s estate.
3. There are three c laims under case number 15818/ 2020. The fir st relates to
the Plaintiff’s maintenance claim against J[...]’s estate, the second to the recovery of
an amount of R 142 518.21 which the Plaintiff claims belonged to her and was
removed fraudulently and wrongfully from her Capitec bank account (the Capite c
claim’), and the third, a claim for either the return or the equivalent value of a motor
vehicle the Plaintiff alleges belongs to her , of which she was forcefully dispossessed .
The Plaintiff abandoned other claims she instituted in both cases.
D[...] ’S INVESTMENT CLAIM
4. In case number 15817/2020, the Plaintiff acts in her representative capacity
as the appointed Executor of the estate of D[...] N[...] (estate number: 017 302/2019) .
The Defendant , Yulande Aktash (‘the Defendant’) , is a 48-year-old female who is the
daughter of J[...] N[...] . The Defendant resides in Dubai, United Arab Emirates. The
Defendant is cited in her representative capacity as the Executor of th e Estate of
Late J[...] N[...] (019334/2019) . The Second Defendant is cited as an interested
party , and no relief is sought against them. Both deceased were residents of the
Western Cape.
5. The Plaintiff and J[...] were D[...] 's biological parents . He was born on 15 July
2012 . He died at the age of 7 years . J[...] opened a savings account in D[...] ’s name
with Standard Bank on 30 May 2017 , when the minor was a month and a half short
of his fifth birthday. The Plaintiff accompanied J[...] to the bank when the account
was opened. J[...] had transferred an amo unt deposited the previous day of
R1 522 185.86 from a Bidvest call account in the name of D N[...] into the Standard
Bank account . The Standard Bank statement reflects a balance of R1 712 437 in
D[...] ’s account on 9 July 2017. R1 712 000 was transferred in an inter -bank
transaction on 20 July 20 19 to a third-party transfer account. The Court can infer
from the documentary evidence that the Standard Ban k account in D[...] ’s name held
amounts for over two years before it was emptied , two months before D[...] ’s death.
6. The Defendant admitted that J[...] had transferred the sum of R1 712 000 out
of the Standard Bank account. She denied that D[...] had any right to the amount ,
although J[...] opened it in D[...] ’s name and held nominally by the minor. Defendant
admitted that the amount was transferred to one of J[...]’s accounts on 20 July 2019 ,
and was in her possession.1 The d eceased had opened several accounts in D[...] ’s
name at Capitec, Nedbank and Standard Bank. The funds were deposited into these
accounts for J[...]’s personal use and to pay the family’s expenses. The Plaintiff
purchased two erven in Mossel Bay from funds in D[...] ’s Capitec account.
7. The Plaintiff testified that J[...] controlled the account , and she d id not have
access to it. The amount was intended for D[...] ’s education. It constituted an asset in
1 The Court notes that the transfer of the amount occurred days after D[...] ’s 7th birthday and
around the time the Plaintiff left the marital home
D[...] ’s estate. J[...] realised the amount from the sale of his father’s property . The
Plaintiff asserted that it was common cause that J[...]’s estate held the amount of
R1 712 000 . The Defendant , as Executor, was liable for the return of the amount to
D[...] ’s estate . The Plaintiff alleged in her particulars of claim that J[...] had, without
cause, unlawfully, wrongfully, and fraudulently transferred the amount out of D[...] ’s
accou nt and was unjustly enriched at the expense of D[...] ’s esta te.
8. The Plaintiff relied upon the provisions of paragraph s 1, 1.1 and 1.5 of J[...]’s
revoked will of 2 January and 2 June 2019 . The testament s provided for D[...] to
inherit 52% of the proceeds of the sale of J[...]’s house. Paragraph 1.5 appointed
Plaintiff and Defendant in their capacities as joint guardians of D[...] . The funds
allocated to D[...] were to be used if he wished to study or for other reasons;
otherwise, they would be handed over to him at age 21. The testament s refer to D[...]
having investments he can use for studies , or as the Plaintiff specifies in her will. The
Plaintiff’s will was not placed before the Court. The interpretation of paragraph 1 of
the will does not support a contention that the amount in the Standard Bank account
was intended for D[...] ’s education , as it refers to the proceeds of the sale of the
house as the source for that purpose. The u nnumbered na rrative of the testaments
refers to investments made on behalf of D[...] .
9. In paragraph 3 of the 2 January 2019 testament, reference is made to D[...] ’s
investments at Capitec, Nedbank and Standard Bank . It cross -references the
Plaintiff’s testament for the details of those accounts. It also refers to an investment
of R1 522 000 in a Standard Bank account with the number 0[...]. Among the
documents included in Plaintiff’s bundles is the manual electronic fund transfer on 30
May 2017, which reflects this account as the third-party beneficiary to which the
R1 522 000 from Bidvest was transferred . It is unclear how the Standard Bank
account with the number 1[...] eventuated .
10. The Defendant’s bundle of documents clarified the movement of monies
between the accounts controlled by J[...]. He applied to open a Bidvest account on
28 May 2015. R1 450 000 was transferred to a Bidvest fixed deposit account from
Nedbank on 25 May 2015. R1 522 185.86 was deposited into a Bidvest ca ll account
on 29 May 2017. It was referenced as a settlement of a deal. The amount was
subsequently transferred to the Standard Bank savings account with the number
0[...]. This amount was then transferred to another account. The Defendant intended
to use the information in the cross -examination of the Plaintiff.
11. Under cross -examination, Plaintiff accepted that J[...] had many accounts.
The Plaintiff was unaware that J[...] had applied to open a Bidvest fixed deposit
account in May 2015. She knew J[...] had a Nedbank account , as she knew of a
Nedbank credit card. R1 4 million was transferred to the Bidvest account from
Nedbank. The Plaint iff testified that the R1 4 million was the proceeds of selling
J[...]’s father’s house. J[...]’s father was not alive when D[...] was born. The Plaintiff
was not aware of the Bidvest account. She testified that she was only aware of the
Standard Bank accou nt.
12. The Plaintiff confirmed that she accompanied J[...] to open D[...] ’s account at
Standard Bank. She had to provide her cellphone number , but could not explain why
she accompanied J[...] to open the account. J[...] told her he was opening the
account to cater to D[...] ’s education. Although she had never seen the grandfather’s
will, J[...] had indicated that the amount he deposited into D[...] ’s account was an
inheritance from his father . J[...] held a bank card from the Standard Bank account.
The card was in D[...] ’s name. Although D[...] was in school, none of the funds were
used for his school fees , as J[...] had successfully applied to be exempted from
paying D[...] ’s school fees.
13. The Plaintiff was referred to her summons , commencing her divorce action
against J[...], which was filed on 30 July 2019. The Plaintiff sought the costs of
D[...] ’s education from J[...] until she began working . She alleged further in her
particulars that she would contribute 50 % of the costs of D[...] ’s studies once she
obtained employment. T he Plaintiff was asked why she sought the costs of D[...] ’s
education if she knew of a significant amount deposited into th e Standard Bank
account for this purpose. The plaintiff was referred to the exemption that J[...]
obtained regarding the payment of school fees and asked why she sought an order
that J[...] pay half the school fees. The Plaintiff was unable to provide an a nswer. It
was put to the Plaintiff that it was improbable that she considered the funds in the
Standard Bank account for educational purposes .
14. The bank transactions showed a pattern of amounts entering and leaving
J[...]’s accounts. The Plaintiff denied k nowledge of how J[...] conducted his financia l
transactions. He did not tell her about moving money between accounts. There was
reference made to eight bank accounts held in J[...]’s name. The Plaintiff knew of
the Nedbank, Capitec, Bidvest, and Standard Bank accounts. The Plaintiff was
referred to her testimony in chief , when she stated that she knew of the Standard
Bank account alone. The Plaintiff surmised that J[...] had moved the money around
to benefit from the interest paid on those accounts . It was suggested to the Plaintiff
that J[...] had moved the money from account to account as he considered it his
money. Plaintiff insisted that J[...] had said he opened the Standard Bank accoun t for
D[...] ’s studies. It was suggested further that J[...] had changed his mind about
investing for D[...] . It was put to the Plaintiff that J[...] had not told her about the
accounts as he considered it his money. The Plaintiff remained resolute in her
contention that the amount was for D[...] ’s studies. The Plaintiff was then asked
whether the money was a gift to D[...] and whether J[...] had declared these in his tax
returns or paid donations tax. The Plaintiff was unable to answer these questions.
15. The Defendant confronted the Plaintiff about the contents of a box of
documents she had forwarded to the Plaintiff after J[...]’s death. The Defendant had
found the box in the couple’s common home and on opening it, found, among other s,
certain documents relating to J[...]’s financial transactions and which were intended
for her information. The Plaintiff denied any knowledge of the documents the
Defendant had found in the marital home and had allegedly forwarded to her. The
Defendant then dealt with the purchase of two Mossel Bay properties. The Plaintiff
was confronted about the source of the money used to conclude the transactions.
The purchase price came from D[...] ’s account . It was suggested to the Plaintiff that
she should pay the proceeds back into this account. The Plaintiff responded that she
did not know the money f or those plots came from D[...] ’s account , nor did J[...]
indicate that he would remove the money from D[...] ’s account. She was aware of a
Capitec accou nt. She knew that if she got the money returned, the Defendant would
be entitled to 50% of D[...] ’s net estate in her personal capacity . It was also
suggested to the Plaintiff, which she denied, that the Defendant would be entitled to
half of the proceeds of the sale of the Mossel Bay plots.
16. The Plaintiff was also referred to R40 000 in a Capitec account and was
asked why she was not claiming that amount . The Plaintiff had no answer but said
she would let that amount go. She was asked about the logic of letting one amount
go and insisting that the other be r eturned. The Plaintiff was unable to provide an
answer. The Plaintiff was referred to the will of 2 January 2019. It was typed by a
layperson and not by a bank or attorney . She was also referr ed to another revoked
will dated 2 June 2019. In both wills, J[...] embarked upon a narrative praising and
criticising the Plaintiff and referencing his two children, the Defendant and D[...] .
EVALUATION CASE NUMBER 15817/2020
17. The Plaintiff argued that nothing in law prevented a minor from entering into
agreements or from opening a bank account with the assistance of his parent or
guardian . The Standard Bank account was opened with both parents being present.
18. The Defendant ar gued that holding or possessing funds deposited by a third
party into one’s bank account does not transfer ownership of the funds . Ownership
requires both delivery of the item (in this case , the funds) and the intention of the
owner ( J[...]) to transfer ownership to the recipient ( D[...] ), as well as the recipient's
intention to accept ownership. The Defendant submitted that the principle is part of
the abstract property transfer system, where the transfer's validity is independent of
the underlyi ng transaction or contract .2
19. Ownership in a movable thing passes to another when the owner delivers it to
another with the intention of transferring ownership to them , and the other takes the
thing with the intention of acquiring ownership thereof. The validity of the transfer of
ownership is independent of the validity of any underlying contract. The passing of
ownership requires, among other things, a transferee being capable of acquiring
ownership. Children under the age of seven cannot acquire owners hip in movables
and immovables without the assistance of their legal representatives.
2 Commissioner of Customs and Excise v Randles Bros and Hudson Ltd 1941 AD 369, Trust
Bank van Afrika Bpk v Western Bank Bpk 1978 (4) SA 281 (A)
20. The Defendant then relied upon the difference between possession and
owner ship, stating that possession refers to physically holding or controlling an item .
In contrast, ownership is the legal right to that item. The Defendant submitted that if
J[...] deposited funds into D[...] ’s account without the intention of transferring
ownershi p, such as for safekeeping, tax avoidance, or a better interest rate, D[...] did
not become the owner of those funds.
21. The Defendant then argued that in terms of the principle of commixio, once
money is deposited into a bank account , it becomes the bank's property , irrespective
of who made the deposit or the circumstances surrounding it. The account holder
then holds a personal right against the bank to repay that amount, but does not own
the specific funds.3 When money is deposited into a trust bank account, ownership
is vested with the bank, and the depositor acquires certain rights against the bank .
This, it was submitted , reinforces the notion that depositing funds into another’s
account does not transfer o wnership to the account holder.
22. The Defendant argued that , based on all the evidence before the Court about
how the deceased managed his money, it was improbable that he intended to
transfer ownership of the funds to D[...] for his education. D[...] was fo ur years old
and incapable of acquiring ownership. Moreover, during his lifetime, he did not have
the requisite intention to acquire funds. There was no agreement between the
parties , as the Plaintiff’s evidence was that the deceased told her he had deposi ted
the funds into D[...] ’s account. Any agreement between the parties that the funds
were to be so used is irrelevant given the law of transfer of ownership.
23. The Defendant submitted in response to the Plaintiff’s persistence that the
funds were earmarked for D[...] ’s education , the divorce summons sought orders
from the Court that post-divorce, both the Plaintiff and t he deceased contribute
towards D[...] ’s educa tion costs, including the costs of his tertiary education. The
Plaintiff could not explain why she sought these orders , given that D[...] allegedly had
access to funds over R1.5 million in the Standard Bank account. Her reply that she
did not know was unsat isfactory , more so as she claimed to have told her attorney
3 Lurie v Finkelstein and Others [2016] ZAGPPHC 417
about the existence of the funds. J[...]’s revoked will specifically provided for D[...] to
receive 52% of the proceeds of the sale of the marital home , which was earmarked
for D[...] ’s education if he were inclined to pursue further studies. The will was
executed before the funds were transferred from the account held in D[...] ’s name. A
similar provision was included in the revoked will of June 2019 and was executed
before the funds were transferred from the account held in D[...] ’s name. Given the
estate's net value , it was improbable that J[...] would have transferred ownership of
R1.7 million to D[...] and that D[...] would inherit 52% of the sale pr oceeds of his
property to fund his education.
24. The Defendant submitted that the deceased never intended to transfer
ownership of any funds he deposited into any accounts he opened in D[...] ’s name.
Nine different bank accounts were opened in J[...]’s name during the short tenure of
D[...] ’s life. J[...] always had total and unfettered control over tho se accounts , and
Plaintiff was unaware of some. The funds in those accounts were deposited by J[...]
and belonged to him. From time to time, J[...] utilised funds in D[...]’s accounts ,
withdrew cash, and paid money into the account to be a conduit for payments out of
the account. These transactions included purchases at Checkers, a deposit of
R600,000 to fund the purchase of land in Mossel Bay, a withdrawal of R40 000 and
regular deposits varying betw een R3500 and R3800 over six months. The deceased
never advised the Plaintiff about most of the accounts or any of the transactions
within the accounts. There was no evidence that D[...] ever transacted from any of
the accounts , was even aware of the existe nce of the accounts or that funds were
used for D[...] ’s maintenance , education, or the purchase of luxury items or his
school fees.
25. Defendant submitted that Plaintiff’s inconsistent attitude to D[...] ’s accounts
indicates that she could never have considered , her view in any event being
irrelevant , that the funds in a bank account held in D[...] ’s name were his property
and thus claimabl e from the Defendant. Defendant submitted that Plaintiff was aware
that the two erven in Mossel Bay , which were registered in her name , were
purchased with funds from a Capitec account held in D[...] ’s name.
26. The Defendant provided the Plaintiff with the documents , which reflected that
the payments for the two erven in Mossel Bay were made from D[...] ’s account. Both
documents clearly state that D[...] N[...] made a payment to the Plaintiff’s account.
Defendant testified that she provided the Plaintiff wi th a brown envelope , which had
been left for her by J[...], which contained a letter from J[...] and the two Capitec bank
letters. The plaintiff denied receiving the letters. Defendant 's recall of this was not
challenged in cross -examination . The defendant submits that her evidence is to be
preferred .
27. Soon after D[...] and J[...]’s death, Plaintiff was aware that the land she owned
was bought with what should have been considered D[...] ’s money. Plaintiff
proceeded to sell the two plots and used the sale proceeds to loan an amount to her
brother, bought a car, paid for some courses, and bought furniture. The Defendant
submitted that the Plaintiff’s views about accounts in D[...] ’s name are inconsistent .
The Plaintiff expediently held a view about one account but not in respect of the
other accounts held by D[...] . She had not claimed payment of the R40 000 the
deceased withdrew from the Capitec account held in D[...] ’s name.
28. The Defendant submitted that the Plaintiff had not made a case for the return
or repayment of R1.712 million from J[...]'s estate . The Defendant sought that the
claim be dismissed.
29. The Court is required to make a factual determination about the ownership of
the Standard Bank funds and whether t he R1 712 000 that was transferred from it by
J[...] was unlawful. The Plaintiff provided the necessary bank statements that
reflected the account in D[...] ’s name. The account was opened in July 2017 and
remained ex tant for two years before it was emptied. The Court has noticed that
R1 712 000 was transferred contemporaneously when the Plaintiff left the marital
home. J[...]’s two testaments refer to the investment of R1 522 000 in the Standard
Bank account for D[...] ’s benefit. The funds were set aside for a specific purpose, i.e.,
an investment for D[...] . The Court accepts the testimony that this fund grew to the
amount transferred from it.
30. The Plaintiff remained resolute about two aspects of this claim : that the
account was opened for D[...] and that the money belonged to his estate. The
Plaintiff testified that the amount in the account was intended for D[...] ’s education.
This aspect of her test imony is not corroborated by the will's wording, which catered
for D[...] ’s education from the proceeds of the sale of the marital home. It does not
change Johaan's written intention, though, that the account held an investment for
D[...] .
31. The Defendant di d not seriously dispute the ownership of these funds, raising
peripheral arguments about it. The Defendant pointed to a pattern of financial
transactions suggesting th ese were nominal accounts used by J[...] for household
expenses, growth and tax purposes. The Defendant sought to suggest that
ownership had not passed to D[...] as he was a minor and required a parent or
guardian to accept the transfer of ownership. The Defendant could have only meant
that the Plaintiff had not accepted the transfer on D[...] ’s behalf, as she had no
control over these accounts. The Defendant lost sight of the fact that J[...] would
have accepted the account transfer on D[...] 's behalf . Defendant could not provide
any countervailing evidence to support the propositions put to the Plaintiff that the
account was used for his purpose, nor could she dispute the stated intention of the
account, i.e., that it was intended as an investment for D[...] .
32. The purchase, sale, and proceeds of the Mossel Bay properties and whether
the Defendant in her personal capacity is entitled to those proceeds have no bearing
on this claim . No counterclaim addresses this relief , and therefore , the Court ignores
all propositions put to the Plaintiff about those properties . To the extent that the
Defendant relies upon the use of D[...] ’s Capitec account to purchase the Mossel
Bay properties to illustrate that J[...] used the accounts for his purposes , the
response is that it does not displace the Plaintiff’s case that D[...] was the intended
beneficiary of the account th at is the subject of this claim.
33. The Court is cognisant of the content of the two revoked testaments, which
refer to D[...] having an investment in a Standard Bank account number 0[...] of
R1 522 000. The evidence before the Court was that this amount grew to the amount
claimed by the Plaintiff in her representative capa city. While J[...]’s will made
provisions for D[...] ’s education and other needs from the sale of the marital home, it
is clear that the investment in the Standard Bank account was made for D[...] ’s
benefit and correctly belonged to D[...] ’s estate. The Court is satisfied that the
Defendant should pay this amount to D[...] ’s estate and shall make the necessary
order that follows.
THE MAINTENANCE CLAIM
34. The Plaintiff’s claim for maintenance is the first of the three claims under case
number 15818/2020. The Plaintiff claims loss of suppo rt from the First Defendant in
her capacity as Executor of J[...]’s estate under the Maintenance of Surviving
Spouses Act 27 of 1990 . The Act allows the Plaintiff to claim her reasonable
maintenance needs until her death or remarriage to the extent that she cannot do so
from her own means and earnings. The Act defines ‘own means’ to include any
money , property , or other financial benefit accruing to the survivor in terms of the
matrimonial property law or the law of succession or otherw ise at the death of the
deceased spouse. The definition casts a wide net on what must be included in the
basket of means available to the surviving spouse’s benefit , except for amounts
gratuitously made .4
35. Section 3 of the Act provides guidelines for assessing the reasonable
maintenance needs of the survivor and identifies three factors in addition to any
others that should be considered . The three factors are the amount in the estate of
the deceased spouse available for distrib ution to heirs and legatees, the existing and
expected means, earning capacity, financial needs and obligations of the survivor
and the subsistence of the marriage , and the standard of living of the survivor during
the subsistence of the marriage and her a ge at the death of the deceased spouse.
36. Plaintiff and J[...] were married on 28 May 2011 out of community of property
and remained married until J[...] died. The Plaintiff was born on 29 January 1981.
She married J[...] on 28 May 2011. Johan was 60 years old , and she was 30 when
4 Oshry NO and Another v Feldman (401/09) [2010] ZASCA 95; 2010 (6) SA 19 (SCA) ; [2011] 1
All SA 124 (SCA) (19 August 2010) at para s 33-36, Feldman v Oshry NO and Another
(6752/20007) [2009] ZA KZDHC 8; 2009 (6) SA 454 (KZD) (14 April 2009) , at paras 16 -17
they married. The marriage endured for 8 years and three months . D[...] was born
during the marriage. The Plaintiff was 38 years and eight months old at the time of
J[...]’s death. J[...] was the household's sole breadwinner and was responsible for the
Plaintiff’s maintenance. Apart from generating a small income from selling beauty
products , the proceeds of which were deposited into J[...]’s account , the Plaintiff
depended entirely on him for her financial needs. The common household was a
large three -bedroomed home with a kitchen, a living area and two garages in
Panorama.
37. The Plaintiff left the marital home with her son on 19 July 2 019. J[...]
thereafter contributed R1000 per week towards the son’s maintenance , but nothing
towards her needs . In his final will, J[...] excluded the Plaintiff from receiving any
benefit from his estate , although he had made provisions for her in his revoked wills .
The evidence revealed that her standard of living during the marriage was restrained
by J[...]’s overarching control of the household finances, meaning that she could not
have been accustomed to an extravagant lifestyle.
38. It is common caus e that approximately R4 200 000 is available in J[...]’s
estate for distribution. The Plaintiff claimed she has no existing means as she had
exhausted what she had . The Plaintiff has claimed past maintenance from the date
of J[...]’s death to the date of judgment.5 The Defendant sought to show that the
Plaintiff had disposed of two properties in Mossel Bay registered in her name for
R656 000. The Plaintiff purchased a vehicle even though she had access to another
car, which is the subject of a further claim in this case . She loaned R200 000 from
the property sales to her brother, who had settled the amount owed to her before the
trial. The Plai ntiff had to replace the car she bought because of mechanical
problems . She was initially unemployed after her separation from J[...], but secured
income from a home -based beauty business and then , from her current employment
since 2021 .
39. The Plaintiff earns an income of R7200 from her formal employment and an
additional R800 per month from selling a line of beauty products. The evidence
5 The Plaintiff -appointed Actuary calculated past maintenance from the date of Johann’s death to
the date of the calculation on 1 September 2019
confirmed that she receives a thirteenth cheque equal to a month’s salary from her
employer. Thus, her m onthly income would be R8600. Her job entails driving
children to an aftercare facility and performing general duties . She has no medical
ailments.
40. The Plaintiff claims R 18 995 monthly maintenance from J[...]’s estate. The
amount was compiled in a schedule and comprises R7300 for rent, R5000 for
groceries, R1000 for electricity , R292 for her cellphone, R340 for vehicle insurance,
R1000 for clothing, R 500 for vehicle maintenance and serv icing, R1000 for fuel, R 40
for motor vehicle licence, R1000 for medical expenses, R400 for audiovisual
streaming services, R200 for replacement of household items, R200 for gifts, R25 for
television licence, R300 for D[...] ’s pet, and R400 for entertainment per month. An
actuarial calculation performed on 9 July 2020 , based on maintenance of R16 400
per month and no income , yielded R4 679 200 in maintenance needs over her
lifetime. Payment of that amount would have exhausted the total value of J[...]’s
estate.
41. The Plaintiff’s partner contributes R 9100 per month fo r the rent, electricity,
streaming services, and entertainment. If the se amounts were deducted from the
Plaintiff’s itemised expenses, she would require R 9895 monthly to maintain herself ,
and that has been the case for some time. The plaintiff’s stated need of R18,995 is
inconsistent with her actual needs.
42. The Plaintiff argued that a surviving spouse in a romantic relationship with a
new partner in a joint household who shares expenses would not automatically be
entitled to support from the partner.6 The submission finds support in the Act ,
allowing maintenance needs until remarriage. Plaintiff’s evidence in chief was that a
person shares her flat and pays rent . The identity of that person emerged on further
questioning . He was her new partner. Plaintiff’s partner is paying for
accommodation, utilities, and amenities that he would have paid for if he had lived
alone. Furthermore, the Plaintiff testifie d that the relationship was serious, meaning
she would obtain this contribution for some time. The relationship between the
6 EW v VH 2023 (4) SA 123 (WCC)
Plaintiff and her partner is not one where a question of reciprocal support or
maintenance arises. The contributions made by the Plaintiff’s partner are
distinguishable from the financial support the Plaintiff received from her sons in the
Oshry matter.7
43. To the extent that Plaintiff ’s Counsel relies on EW v VH as authority for the
proposition that a surv iving spouse in a romantic relationship would not automatically
be entitled to support from the partner, he is incorrect , as that issue was not before
the Court. The Court was asked to develop the common law , which it concluded did
not need to be developed . The question before the full bench of this division was
whether life partners could claim maintenance from one another following the
termination of their partnership. The majo rity of the full bench declined the invitation
to develop the common law as the application was not properly motivated and the
relief sought was unclear. The majority declined to consider interim relief for
maintenance as it was ancillary to a finding in her favour on final declaratory r elief.
44. Under cross -examination, the Plaintiff agreed that she claimed R4 000 monthly
for six months when she instituted divorce proceedings against J[...] on 30 July 2019.
The Plaintiff underwent rigorous cross -examination about her capacity to earn
income in addition to her current employment and additional earnings from selling a
line of beauty products. She was also interrogated about her reasons for leaving the
common household before J[...]’s death and her long-term romantic rela tionship with
her current partner, who contributes to her monthly expenses . The transcript will not
capture Plaintiff’s bewilderment or periods of silence as she struggled to
comprehend the propositions put to her, even though she had the benefit of testif ying
in her home language at the Court's behest . The overall impression of the Plaintiff is
that she was truthful and made the concessions sought fro m her fairly , even though
they, at times, were to the detriment of her formulated case .
45. The Defendant managed to elicit from the Plaintiff that her monthly living
expenses would at best amount to R10 292. These concessions were obtained after
factoring in the contributions made by the Plaintiff’s current partner. The Plaintiff
7 Oshry supra at para 12
conceded that she required living expenses of R9 592 per month. The Defendant
generously added the full item for medical expenses of R1000 per month and
obtained the further concession reflected in the first sentence of this paragraph.
There was no agreement between the Plaintiff and her partner that she would have
to repay him any shortfall, and he did not have any legal obligation to maintain her .
The Defendant accordingly argued that the Plaintiff’s shortfall between her expenses
and income is R1 709.
46. The Defendant pursued the issue of the Plaintiff’s earning capacity ,
suggesting that she could do babysitting and beauty therapy sessions to supplement
her income to meet he r current shortfall . The Plaintiff began work at midday and did
not work weekends. Plaintiff resisted these propositions , protesting that she needed
time for herself. The Defendant argued that if the Plaintiff supplemented her income
by babysitting over weekends or doing a few beauty treatments , she could meet her
current shortfall. The Defendant submitted that the Plaintiff had not established any
need for rehabilitative or lifelong maintenance . If the Court found otherwise, then the
Defendant argu ed that the actuarial claim should be based on a need of R1 709 per
month.
47. The Plaintiff submitted a report from a consulting psychologist and human
resources consultant. The expert considered the Plaintiff’s interest in health and
beauty , personal groo ming, and fashion, but concluded that the Plaintiff was not
particularly risk -embracing as an entrepreneur. The Plaintiff’s sojourn into a home -
based beauty -oriented business had a short -lived tenure. The expert considered the
psychological impact of D[...] ’s death on the Plaintiff. Although the Plaintiff exhibited
no psychological sequelae , she remained vulnerable to future ailments that could
impact her working capacity. The Plaintiff functions best in a support role without
supervisory or managerial responsibilities, but is sufficiently independent to pursue
self-employment .
48. The Plaintiff completed dental technology and nail care courses , including
manicures, pedicures, and acrylic nails. The expert suggested that the Plaintiff may
benefit from a course in early childhood development to complement her current
employment. The Plaintiff has a reliable work ethic and is responsible. She is well -
suited to her current employment or could secure work in the retail sector or as an au
pair. The Plaintiff would need to enrol for further courses to enable her to pursue a
competitive career as a beauty therapist. The expert concluded that the Plaintiff’s
earning capacity ranges between R70 00 and R8500 per month.
49. The Court has heeded the concessions elicited from the Plaintiff during cross -
examination. The Court is not persuaded that it should consider any potential
earnings from work beyond what the Plaintiff currently does . The Plaintiff’s evidence
was that her brother had repaid the loan she had forwarded to him. The partner’s
contribution to the Plaintiff’s living expenses is a misnomer. They are sharing the
living expenses incurred by both of them. It would be unfair and beyond the
provisions of the Act for J[...]’s estate to shoulder expenses that the Plaintiff shares
with her partner. The Court has considered the proceeds Plaintiff earned from selling
the two Mossel Bay properties, which have tided her over since her se paration from
J[...]. The Court accepts that Plaintiff has no means beyond her salary and income
from selling beauty products.
50. As the Plaintiff had access to the proceeds from the sale of her properties in
Mossel Bay as well as a small amount in her bank, the Court finds that it would be
just and equitable not to make any award for past maintenance needs as the Plaintiff
would have had access to sufficient means and an income subsequently to tide her
over the period from J[...]’s death to the date of this judgment. The Plaintiff’s
earnings are insufficient to support her future needs, and she requires maintenance
from J[...]’s estate.
51. The Court exercises a discretion in determining the amount of maintenance
granted to a surviving spouse under the Act. It has to balance the Plaintiff’s
maintenance needs with the estate’s ability to afford them without unfairly prejudicing
its heirs . The Court is cognisant of the Defendant’s position. She has a conflict of
interest as she is the largest beneficiary of J[...]’s estate , and it would not be
unexpected of her to limit the Plaintiff’s claim against the estate .
52. Plaintiff’s Counsel argued that the Plaintiff was entitled to life long
maintenance support based on J[...]’s rationing and control of her financial needs
during their marriage. He re lied on unspecified content of the expert’s report to
support this notion . The relationship between restrictive behaviour and the need for
lifelong maintenance is not mutually exclusive . It is unclear how the two are related
in this case. The estate has realised an insubstantial amount for a person in the
position of J[...]. With the benefit of hindsight, his control over his finances may have
been rational ; there simply wasn’t enough to splurge. The Defendant ’s Counsel
argued that Plaintiff had failed to establish that she needed maintenance for any
period, but if the Court accepted that she had prevailed, then her maintenance claim
should be based on a need of only R1 709 per month. The Plaintiff persisted that her
needs were R18 995 per month less her monthly income.
53. Any amount awarded to the Plaintiff would depend upon the capacity or
means of J[...]’s estate to pay . The estate will be diminished by R1 700 000 once the
claim under case number 15817 is settled. The arithmetic indicates that the estate
could afford th e Plaintiff's reasonable maintenance needs , provided that it is not
computed based on the original actuarial report , which was based on the Plaintiff
earning no income . The Plaintiff has since increased her living expenses by about
R2000 per month . Still, her income will materially offset the lump -sum actuarial
calculation of maintenance needs.
54. The evidence led a nd its scrutiny under cross -examination necessitated a
new actuarial calculation to be obtained . The Court raised the issue of whether an
actuarial calculation could be avoided and whether the Court could award a lump
sum, as is done in damages claims for loss of earnings . The assessment is
unpredictable as the Court forecasts the future on the strength of many variables .
The Court can either make a fair and reasonable estimate or resort to actuarial
calculations based on assumptions arising from the evidence.8 Plaintiff’s Counsel
submitted that a lump sum award is permissible and referred the Court to the Oshry
matter.
55. In Oshry , the issue was whether the Act permitted maintenance to be paid in
a lump sum instead of the usual method of periodic payments. The Supreme Court
8 Southern Insurance Association v Baily NO 1984 (1) SA 98 (A)
of Appea l (SCA) examined the provisions of the Act and concluded that the Act
permitted lump sum payments as opposed to periodic payments. It is unclear
whether the Court envisaged an assessment based on a ‘ blind plunge into the dark ’,
as is the basis of the lump sum awards made in damages cases. A holistic view of
the judgment would suggest that it did not. The SCA considered the evolution of the
Maintenance Act from its 1963 incarnation to the 1998 version. In the 1963 Ac t,
maintenance was defined as a periodic payment. The 1998 Act defined a
maintenance order as “any order for the periodical payment of sums of money
towards the maintenance of any person… ” The 1998 Maintenance Act does not refer
to lump sum payments, but it does not exc lude them.9
56. The arguments against lump sum payments were that policy considerations
militated against granting it. A single lump sum payment would expose the estate to
risk. The accuracy of the assumptions made in calculating a lump sum could not be
assured. The claimant for maintenance could die earlier than expected or predicted
by life expectancy tables , or could remarry sooner than expected. The estate would
be prejudiced by granting maintenance in a lump sum. Conversely, a surviving
spouse might outlive her life expectancy, leaving a claimant who accepted a lump
sum award destitute. An order for periodical maintenance payment s over a long or
indefinite period would cause difficulties in administering and finalising a deceased
estate. This would ca use delay and uncertainty concerning how much of the estate's
assets had to be retained to discharge future maintenance obligations. The
legislature enacted s 2(3)(d) of the Act , providing a negotiated settlement. The SCA
in Oshry referred to loss of suppo rt claims in delictual matters where total accuracy
can never be assured. Courts do the best they can. This does not mean that a court
assessing a claim for maintenance should not take these factors into account in the
totality of the presented circumstanc es in deciding an appropriate award
57. The SCA reversed the Court a quo’s refusal to order the costs of the Actuary,
meaning that it acknowledged that an actuarial calculation based on prescribed
assumptions would be the basis to determine the lump sum payment. This Court
raised the issue of a lump sum payment that obviates the need for an actuarial
9 Oshry supra at para 53 -54
calculation in the sense that a Judge gets a feel for the amount that should be
awarded from the evidence placed before it. The amount the Court intends to award
is not made arbitrarily but is judicially defendable. There is a wide chasm between
the needs the Plaintiff identified and what the Defendant elicited fairly under cross -
examination. Suppose the Court a ccepts the Defendant’s submission that the
Plaintiff’s net needs amount to R1 709 per month after her income of R 8 583 per
month is deducted. An arithmetical calculation would mean that the Plaintiff would
receive R 20 508 per year or R2 05 080 over ten years . The Defendant elicited from
the Plaintiff that she had premised her divorce action against J[...] for the paym ent of
R4000 per month , limited to six months , and that under cross -examination, she
conceded , or more properly volunteered , that she require d assistance for ten years.
58. The evidence clearly shows that the Plaintiff, at 43, is relatively young, has a
strong work ethic, and began earning an income soon after J[...]’s death. S he is in a
serious long-term relationship and would probably not require additional support from
J[...]'s estate over her lifetime . The Defendant has made a compelling case for the
Court to accept the calculation of the Plaintiff’s needs based on the concessions
elicited under cross -examination. Yet, the Court is not satisfied that the amount
relied upon by the Defendant would be fair and just to make up the shortfall
experienced by the Plaintiff.
59. In Oshry , the SCA emphasised the need to apply the norms and values of the
Constitution to the relevant provisions of the Act and to respect the dignity of the
vulnerable . Despite offering to look after the Plaintiff after J[...]’s death , the
Defendant has steadfastly resisted her claim for maintenance. There is no provision
for the Plaintiff’s maintenance in the final liquidation and distribution account. Yet, t he
Defendant persisted with her promise to assist the Plaintiff in her testimony . The
Plaintiff instituted this claim in October 2020 and has had to realise her assets to
survive financially.
60. The Actuary has not identified the Plaintiff’s life expectancy , and this aspect
was not addressed in evidence. The Plaintiff is 44 years old. According to Stats SA,
the life expectancy for South African females is 71.3 years, meaning that the Plaintiff
would have needed maintenance for approximately another 27 years if the Court
were inclined to grant her lifetime maintenance support . The Court has already
indicated that the evidence suggests the Plaintiff will not require assistance with her
maintenance needs for the rest of her life. Other variables have to be consid ered,
e.g., the probability of remarriage, the psychological vulnerability, the shared
expenses , the Plaintiff’s entrepreneurial pursuits, and the scope for her to improve
her earning capacity. It would be difficult to integrate these factors into a single
contingency percentage. The Plaintiff contends that the normal 15% contingency
deduction applies . If the Court uses the figure elicited by the Defendant, the Plaintiff
will face a situation where the inflationary adjustments to her earnings would quickly
outstrip her maintenance needs. The Court would have to add further percentage
points to adjust for the variables identified in this paragraph, reducing any amount
she would be entitled to. Then, there is the contingency for remarriage. How does a
Court apply a remarriage contingency amounting to about 13% in the Plaintiff’s case ,
when it could be argued that the chance of remarriage is 100%?
61. This type of case calls for a lump -sum award , like that made in damages
claims . Once the law recognises that a lump sum award is competent , then it should
not matter whether the amount is actuarially calculated or estimated, provided that
the latter option is motivated. The Court accepts that the Plaintiff requires financial
support for her living expenses. The law requires the Executor of J[...]’s estate to
provide her with r easonable support . The Plaintiff has displayed remarkable
resilience and moved on from her marriage , which ended in tragedy . Her situation
has improved since 2019 , and her prospects continue improving. The Court has to
focus on the Plaintiff’s reasonable n eeds. The snapshot of her needs is that her
partner covers half or more . The relationship is serious. The difficulties of applying
contingencies to a situation like this have been covered.
62. The Court has considered Plaintiff’s needs schedule and the concessions
obtained under cross -examination . The Court does not have to reconsider each item
of living expense, the duration for which the Plaintiff requires support , or her chances
of remarriage. The Court has opted to take a holistic view and award an amount it
considers fair and equitable to the Plaintiff, J[...]’s estate, and the designated heirs.
The net needs of the Plaintiff are not su bstantial , and the estate is not complex
enough to justify another actuarial calculation. An actuarial cal culation applying
contingencies for the normal vicissitudes of life and remarriage unnecessarily
complicates the matter.
63. The Court has decided to award the Plaintiff a sum of R 600 000, after
considering the issues identified in the preceding paragraphs.
THE PLAINTIFF’S CAPITEC CLAIM
64. The Plaintiff alleged that on or about 30 January 2018, J[...] fraudulently and
wrongfully transferred the sum of R142 518.21 from her Capitec bank account into
his account. The transaction was not done with the Plaintiff’s knowledge, consent, or
authority. J[...] controlled this account. He informed her that he wit hdrew the amount
as there were rumours that the bank would close. He promised to put the money
back. He did not seek her permission to withdraw the money. This was money that
her brother had borrowed from J[...]. This was her money. The assertion that an
amount J[...] lent to the Plaintiff’s brother , who repaid it , could be the Plaintiff’s
money was not elaborated upon and does not make sense. The Plaintiff testified that
Johann had opened this account in 2013 for the Plaintiff and D[...] to use.
65. The Defendant reminded the Plaintiff that she was married out of community
of property to J[...]. In the negotiations between the parties' legal representatives
after the y separated, there was no reference to the Capitec account or the amount of
R142 518.21. The Plaintiff was also asked why she did not claim the amount in her
divorce action , given that she was in financial difficulties after she had moved out of
the marital home. The Plaintiff was unable to answer these questions. She was
examined on the amount that o ne of J[...]’s friends had paid into this account. The
friend had borrowed a sum from J[...]. The Plaintiff had heard J[...] talk about this
loan repayment when he spoke about his finances at the dinner table. The
Defendant suggested to the Plaintiff that this was yet another account that J[...] used
to perform his financial transactions. The Plaintiff insisted that the account was hers
as it was in her name.
66. The Pla intiff testified that she had accompanied J[...] to the bank when he
withdrew the money. The Plaintiff testified that J[...] had no right to withdraw the
money. She discovered J[...] had withdrawn the money when she received the bank
statement. It was put to the Plaintiff that the withdrawal could never have been
unlawful , as J[...] controlled the account . The Plaintiff knew that J[...] intended to
withdraw the am ount from her account. Under cross -examination, it emerged that t he
Plaintiff accompanied J[...] to the bank when the withdrawal occurred. The Plaintiff
has failed to prove that the amount of R142 518.21 was withdrawn unlawfully or
fraudulentl y.
67. Plaint iff’s Counsel argued that the Plaintiff’s testimony that the funds were
hers went uncontested. The Defendant submitted that the Court should scrutinise the
Plaintiff’s evidence carefully. It had to be sufficiently cogent to satisfy the caution
which the Court is required to exercise in circumstances where the stated intention of
J[...] cannot be verified.10 Courts should be suspicious of claims made against
deceased persons , as they cannot defend themselves. In the case cited by the
Defendant, t he English Court in Thomas did not impose an undue burden of
corroboration on the evidence of living witnesses.11 Courts follow the principles of
probative value, admissibility and judicial scrutiny w hen assessing the reliability of
evidence.12
68. Defendant relied on the Plaintiff ’s concession that this claim was
opportunistic . Defendant submitted that the latter alone warranted the dismissal of
the claim. The claim is dismissed as the Plaintiff could not prove that the money was
hers or that the money was fraudulently and wrongfully removed from her account.
THE CLAIM FOR THE RETURN OF A VEHICLE
69. J[...] allegedly gifted the Plaintiff a Nissan Livina motor vehicle in 2012. The
Plaintiff relied upon an oral agreement , the terms of which were that the vehicle was
a gift to her , she would become the owner, and the vehicle would be tra nsferred to
her within a reasonable time frame. Plaintiff alleged that J[...] breached the terms of
10 Wood v Estate Thompson 1949 (1) SA 607 (N) ,
11 Thomas v Times Book Co Ltd [1966] 1 All ER 241
12 Relevance, Admissibility and Probative Value in a Rational System of Evidence: A South African
Perspective , Potchefstroom Electronic Law Journal (PELJ) ,
PER vol.25 n.1 Potchefstroom 2022 , https://doi .org/10.17159/1727 -3781/2022/v25ia11966
the agreement by failing to transfer the vehicle into her name. The Plaintiff alleged
that the First Defendant had also breached the agreement by forcing her to return
the vehicle. The Plaintiff sought the return of the vehicle or the payment of R90 000.
70. During the post-separation negotiations in August 2019, J[...] offered to hand
over the vehicle to her. He agreed to sign the transfer documents . In September
2019 , J[...] had undertaken to give the transfer documents to her. The Plaintiff
habded the ve hicle over to the South African Police on 26 March 2020 as it was
alleged that she had stolen the vehicle s he was threatened that she had stolen the
vehicle. The vehicle devolved to J[...]’s sister’s daughter, Carmen Pieterse. The
liquidation and distribution account valued the vehicle at R99 600 in November 2020.
The First Defendant promised to hand over the vehicle to her at J[...]’s funeral , but
did not.
71. The Defendant could not unsettle the Plaintiff’s evidence . The Court warned
the Plaintiff’s Counsel that the Plaintiff’s claim in the alternative for R90,000 was
unsustainable as the Plaintiff had not placed a current valuation of the car before the
Court. Pla intiff’s Counsel informed the Court that it should make an order to return
the vehicle. The Court shall order accordingly.
CONCLUSIONS
72. Plaintiff instituted various claims in her representative and personal capacities
against the Executor of her late husband’s estate. As executor of D[...] ’s estate,
Plaintiff has proven that the amount of R1 712 000 in a Standard Bank account was
an investment made on his beha lf in 2017 and that it had grown to its value when
J[...] withdrew it . The First Respondent is to return that amount to D[...] ’s estate.
73. Of the three claims instituted by the Plaintiff in her personal capacity , she has
prevailed with her claim for maintenance support and the return of her motor vehicle.
The Plaintiff has been largely successful and is entitled to her costs , except for the
claim relating to the alleged unlawful withdrawal of R142 518.21 from her Capitec
account . In the premises, the Court makes the order that follows.
ORDER :
1. Under case number 15817/2020, the Defendant shall pay the estate of D
N[...] , estate number: 017302/2019, the sum of R1 712 000 (one million,
seven hundred and twelve thousand rand) within seven days of this order ,
2. Under case number 15818/2020, the Defendant shall pay N[...] N[...] the
sum of R600 000 (six hundred thousand rand) within seven days of the
order,
3. Under case number 15818/2020, the Plaintiff’s claim for the return of
R142 518.21 is dismissed with costs ,
4. The Defendant shall return the Nisan Livina motor vehicle with engine
number H[...] to the Plaintiff within fourteen days of this order . If the return
of the ve hicle is not possible, then the Defendant shall pay the Plaintiff the
market value of the vehicle , as determined by the Automobile Association
of South Africa , within thirty days of this order .
5. The Plaintiff is entitled , apart from order 3 above, to her pa rty and party
costs as taxed or agreed , and Counsel’s fees as taxed or agreed on scale
B.
________________________
Bhoopchand AJ
Judgment was handed down and delivered to the parties by e -mail on 22 April 2025
Plaintiff’s Counsel: L J Smit
Instructed by Bellingan Muller Hanekom
Defendant’s Counsel: M Bartman
Instructed by DOMS Attorneys