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
(EASTERN CAPE DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 4357/2024
In the matter between:
I[...] V[...] Applicant
and
DEREK RYAN PUCHERT N.O. First Respondent
(In his capacity as the executor of the
Estate Late G[...] J[...] V[...])
THE MASTER OF THE HIGH COURT, MAKHANDA Second Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
Background
[1] The applicant and G[...] J[...] V[...] (the deceased) were married to each other,
in accordance with s 7(3)( a) of the Divorce Act, 1979, 1 (the Act) in terms of an
antenuptial contract by which community of property, community of profit and loss
and accrual sharing in any form were excluded. The applicant relies on the
Constitutional Court judgment in EB v ER NO and a Similar Matter 2 (EB) to seek a
redistribution of all the assets, or part thereof, in the name of the deceased to her.
The application is opposed by the first respondent (the executor).
[2] Based on the reading -in in EB, this court is empowered to order that such
assets or such part of the assets of the deceased be transferred to the applicant as
the court may deem just. This is subject to the following sections of the Act:
‘7(4) An order under subsection (3) shall not be granted unless the court is
satisfied that it is equitable and just by reason of the fact that the party
in whose favour the order is granted, contributed directly or indirectly to
the maintenance or increase of the estate of the other party during the
subsistence of the marriage, either by the rendering of services, or the
saving of expenses which would otherwise have been incurred, or in
any other manner.
(5) In the determination of the assets or part of the assets to be transferred
as contemplated in subsection (3), the court shall, apart from any direct
or indirect contribution made by the party concerned to the
1 Act 70 of 1979. S 7(3)(a) provides: ‘A court granting a decree of divorce in respect of a marriage out
of community of property –
(a) entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an
antenuptial contract by which community of property, community of profit and loss and
accrual sharing in any form are excluded;…
may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to
that marriage, in the absence of any agreement between them regarding the division of their assets,
order that such assets, or such part of the assets, of the other party as the court may deem just, be
transferred to the first-mentioned party.’
2 EB v ER NO and a Similar Matter 2024 (2) SA 1 (CC) para 149(4). The Constitutional Court ordered
the following reading -in to the Matrimonial Property Act, 1984 (Act 88 of 19 84): ‘36A(1) Where a
marriage out of community of property as contemplated in paras (a), (b) or (c) of ss 7(3) of the
Divorce Act, 1979 (Act 70 of 1979), is dissolved by the death of a party to the marriage, a court may,
subject mutatis mutandis to the pro visions of ss 7(4), (5) and (6) of the said Divorce Act, and on
application by a surviving party to the marriage or by the executor of the estate of a deceased spouse
to the marriage as the case may be (hereinafter referred to as the claimant), and in the absence of
agreement between the claimant and the other spouse or the executor of the deceased estate of the
other spouse (hereinafter referred to as the respondent), order that such assets, or such part of the
assets, of the respondent as the court may deem just, be transferred to the claimant.’
maintenance or increase of the estate of the other party as
contemplated in subsection (4), also take into account –
(a) the existing means and obligations of the parties…;
(b) any donation made by one party to the other during the
subsistence of the marriage, or which is owing and enforceable
in terms of the antenuptial contract concerned;…
(d) any other factor which should i n the opinion of the court be
taken into account.
(6) A court granting an order under subsection (3) may, on application by
the party against whom the order is granted, order that satisfaction of
the order be deferred on such conditions, including conditio ns relating
to the furnishing of security, the payment of interest, the payment of
instalments, and the delivery or transfer of specified assets, as the
court may deem just.’
[3] The effect is that before a court can order in terms of subsection 7(3) of the
Act, it must be established that (a) the party seeking such an order has made a
contribution; (b) that such contribution has increased or maintained the other party’s
estate; and (c) that it would be just and equitable to make such an order because of
(a) and (b).3 Once the factual requirements of subsections (3) and (4) are satisfied,
the determination of whether a redistribution order is to be made at all is entrusted by
the legislature to the wholly unfettered discretionary judgment of the court as to
whether it would be equitable and just to do so. 4 The manner in which the court is to
arrive at what is just and equitable is not limited to what has been contributed.5
[4] The executor is cited only in his capacity as the executor of the deceased’s
estate. H e is also the appointed trustee of a testamentary trust created by the
deceased. In terms of the deceased’s Last Will and Testament, the residue of the
estate was bequeathed to the trustees of a trust created in the Will for the benefit of
child welfare ob jectives as managed by the Gereformeerde Kerk, Bethlehem (the
child welfare ob jectives as managed by the Gereformeerde Kerk, Bethlehem (the
trust). The executor contends that, absent joinder of a trustee, any order granted
3 Katz v Katz 1989 (3) SA 1 (A) at 15C–D (Katz).
4 Beaumont v Beaumont 1987 (1) SA 967 (A) (Beaumont) at 988J–989A.
5 Katz above n3 at 15C–D.
would be unenforceable against the trust. The executor also argues that the
quantification of any payment is su bject to a foreseeable dispute of fact, to be
determined in favour of the executor’s version in accordance with the Plascon-Evans
test, and based on the applicant’s current maintenance needs and ability of the trust
to make payment.
Non-joinder
[5] The executor delivered a notice in terms of Uniform Rule 6(5)( d)(iii) in relation
to non-joinder (the notice). On 17 December 2024, Rugunanan J delivered judgment
and dismissed the question of law raised, with costs. The executor contended that at
the time Rugunanan J heard the application, the immovable property vested in the
estate, of which he had full control. As such, the citation was adequate in respect of
the assets in issue in that application. It was argued that events had moved on
because the fixed properti es had been sold so that the proceeds inclusive of the
estate residue would ultimately become available for distribution to the trust. It was
submitted that no judgment pertaining to the estate could be res judicata in respect
of the trust, and that the applicant had failed to cite the correct party to obtain relief.
[6] The expression ‘res judicata’ has been held to mean ‘that the matter has
already been decided’. The gist of the plea is that the matter or question raised had
been finally adjudicated upon in proceedings between the parties and that it
therefore could not be raised again. 6 The requirements of res judicata are the
following:
a) There must be a previous judgment by a competent court;
b) Between the same parties;
c) Based on the same cause of action, and
d) With respect to the same subject-matter or thing.
[7] It is apparent from the judgment of Rugunanan J that he was faced with two
applications during December 2024. Firstly, the same application for a transfer of ‘all
6 Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297 (SCA).
of the assets’ in the name of the deceased to the applicant, alternatively a transfer of
a part of the estate as the court deemed just. Secondly, the applicant claimed urgent
interdictory relief restraining the executor from selling, leasing, mortgaging and / or
hypothecating ‘any of t he assets’ in the deceased’s estate pending the final
adjudication of the redistribution application. The main application was set down
before the learned judge as an uncontested opposed matter and the urgent
application featured concurrently.
[8] Significantly, it was in reaction to both applications that the executor delivered
the notice, raising as a question of law his non -joinder as trustee of the trust in the
following terms:
‘The first respondent is the appointed trustee of the G[...] J[...] V[...]
Testamentary Trust…
The first respondent as trustee of the G[...] J[...] V[...] Testamentary Trust is
not a cited party before the above honourable court in his capacity as a
trustee of the trust. Consequently, the first respondent submits a point in
limine that the applicant’s pending proceedings are defective for lack of
joinder of the first respondent as a trustee of the trust.’
[9] Rugunanan J noted that the deceased’s Will indicated that his entire estate
comprised a trust created for the benefit of child wel fare objectives as managed by
the Gereformeerde Kerk, Bethlehem, subject to certain conditions and excepti ons.
The argument before the learned judge was described as follows:
‘Since the Will speaks of a trust, of which he is the trustee nominate, the
respondent contends that his non -joinder in that capacity amounts to a failure
by the applicant to recognise the trust as an interested person…It appears
that the respondent’s contention stems from the form or formulation of the
clause identified in the Will. I t is to be borne in mind that the undeveloped
properties are immersed in the residue of the deceased’s estate in regard to
properties are immersed in the residue of the deceased’s estate in regard to
which the respondent – as executor – has endeavoured to obtain a calculation
quantifying in monetary terms the deceased’s estate.’
[10] The court considered and dismissed the question of law raised in the notice
with costs and postponed the main application sine die . The two -fold reasons
provided for the dismissal of the point in limine included the finding that the
substance of the enquiry involved a financial interest that did not necessitate
upholding the contention advanced. In addition, the court noted that the mindset of
the executor evinced no uncertainty about his appointment and status so that his
failure to intervene in that capacity could equate to a waiver of the right to be joined.
[11] Considering this background, it appears to me as though each of the
requirements for res judicata has been satisfied so that the point must be dismissed.
That the executor may have advanced somewhat in the administration of the
deceased estate cannot alter the reality that the non-joinder point in limine pertaining
to the present proceedings was considered and dismissed on the merits by
Rugunanan J. That decision is also not the subject of an y application for leave to
appeal.
[12] As to costs, in my view it was unfortunate at best, and mala fide at worst, for
the executor, himself an attorney, to take the point again, and to persist with the
point, notwithstanding the judgment of Rugunanan J. Tha t this persistence was
framed with conviction, based on a selective reading of the judgment of Rugunanan
J and coupled with a threat only made matters worse. There is no reason why the
estate should bear the costs of this dimension of the proceedings. The conduct was
unreasonable and negligent to the extent that I consider a costs order against the
executor de bonis propriis , on a punitive scale, with costs of counsel on scale C, to
be warranted in respect of the point in limine.7
The accepted facts
[13] Motion proceedings for final relief are appropriate only where it is not
foreseeable that there will be material disputes of fact in the affidavits. The position
foreseeable that there will be material disputes of fact in the affidavits. The position
7 See Stapelberg v Schlebusch 1968 (3) SA 596 (O) at 605.
has been described as follows in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd:8
‘… where in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order may be granted if those facts averred in the
applicant’s affidavits which have been admitted by the respondent, together
with the facts alleged by the respondent, justify such an order. The power of
the Court to give such final relief on the papers before it is, however, not
confined to such a situation. In certain instances the denial by respondent of a
fact alleged by the applicant may not be such as to raise a real, genuine or
bona fide dispute of fact. If in such a case the respondent has not availed
himself of his right to apply for the deponents concerned to be called for cross
examination … and the court is satisfied as to the inherent credibility of the
applicant’s factual averment, it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines whether
the applicant is entitled to the final relief which he seeks … Moreover, there
may be exceptions to this general rule, as, for example, where the allegations
or denials of the respondent are so far -fetched or clearly untenable that the
Court is justified in rejecting them on the papers…’ (references omitted).
[14] The executor was unable to respond to mo st of the applicant’s averments
pertaining to the respective financial contributions during the marriage. It must also
be noted that the applicant’s description of that history is supported by each of the
three children born of the marriage, who make the following identical averments:
a) The deceased informed the children that at the commencement of the
marriage he did not have any assets or savings of his own;
b) The applicant had provided him with the capital / money / funds to make
investments;
8 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A) 367 –368; 1984
(3) SA 623 (A) 634E–635D.
c) The applicant was always working, either to earn an income to pay for our
household expenses, or to take care of the children and deceased, or to
assist the deceased, also with farm work;
d) The applicant managed the household and the upbringing of the three
children;
e) Had it not been for the applicant’s savings, and the fixed income that she
frequently earned, the family would not have been able to survive.
[15] Some remarks are necessary regarding papers contained in the application.
Firstly, the executor’s submissions were premised on the applicant’s claim being one
for maintenance, rather than redistribution. This was misdirected. Secondly, in many
respects the executor was simply not able to comment in response to the facts
presented by the applicant, for example in respect o f the initial savings amount,
reflected below, and his opinion on the probabilities of the applicant’s averments
offered little of value. This supports the conclusion that it was not foreseeable that
there would be material disputes of fact on the affidavi ts when the application was
launched. Thirdly, upon a careful perusal of the affidavits, this is not a matter in
which the court is unable to consider the application, based on the executor’s version
and the founding papers on their own, applying Plascon-Evans, in circumstances
where the court is either satisfied as to the inherent credibility of the applicant’s
factual averment or inclined to assess the executor’s denial of an averment as
clearly untenable. Fourthly, the executor’s reliance on an actuarial report, without an
accompanying confirmatory affidavit, to substantiate an alleged dispute of fact was
misplaced. The report lacked evidential value and was inadmissible. 9 In any event,
the certificate of values presented again pertained to a ‘maintenan ce claim’ in
respect of the applicant, as opposed to one seeking to guide the court in the exercise
of its discretion as to an appropriate redistribution.
of its discretion as to an appropriate redistribution.
[16] The applicant and deceased married out of community of property, with the
exclusion of the accrual s ystem on 5 July 1980. A registered pharmacist, the
applicant established a pharmacy in Springs, Ekurhuleni, Gauteng and earned
significantly more income than the deceased, whose income was periodical and
9 Aldcorn v Road Accident Fund 2022 JDR 1314 (GP) para 6.
fluctuating. At the beginning of the marriage, the c ouple utilised the applicant’s
consistent income and savings, courtesy of the pharmacy, to provide for their family,
including their children, to pay their day -to-day living expenses and fund the
deceased’s business ideas. The pharmacy was sold for R155 000 in 1984 and that
amount was paid to the deceased to control. The couple then used the applicant’s
accumulated savings to pay their monthly living expenses, given that the applicant’s
monthly income had ceased and the deceased remained unemployed. As the
deceased preferred to utilise the savings for investment purposes, the applicant had
to recommence work after 10 months of being a full-time mother.
[17] The couple purchased their first family home with the applicant’s savings,
which included the money obtai ned from the sale of the pharmacy. The deceased
invested some of the applicant’s savings and profits from the sale of the pharmacy
into a Poly container business. When that was sold, the profit obtained was used to
build five townhouses in a development, t wo of which were retained as a further
investment. It was the applicant’s initial savings, the money earned through income
received at the pharmacy, coupled with her later employment and the sale of the
pharmacy which provided the platform for the couple’s future investments in
property, farming and other ventures, which funded the couple’s lives for the next
four decades.
[18] The applicant’s monthly income as a pharmacist was used for the couple’s
day-to-day living expenses, the rates and taxes of their prop erties and their school
fees until the applicant resigned to assist the deceased in a farming venture during
1994. The applicant then assisted the deceased on the farm, managed the
household and cared for the children. When the deceased changed from citrus to
cattle farming, the couple purchased a house in town and the applicant
recommenced employment to obtain income for the family. The deceased was
recommenced employment to obtain income for the family. The deceased was
unemployed while he searched for a cattle farm and the family relied on the
applicant’s monthly income and r ental income. The applicant retained her income
when the deceased secured a farm in 2000, while caring for their youngest child and
managing the household. She started studying during 2002 to further her career.
[19] The applicant was employed at Voortrekker H ospital for a decade after 1997
and earned approximately R5 million during this time. This income was absorbed
into the couple’s day -to-day living expenses, and that of the children while they
remained in the household, and propped up the farming operation s. When the
applicant resigned in 2007, her lumpsum pension fund payout was absorbed into the
couple’s savings accounts and monthly pension fund payouts were used for
household and day-to-day living expenses. The applicant assisted the deceased with
farming operations on four different farms for the next four years before again
returning to pharmaceutical work, during which time her income was again used to
cover household and day-to-day living expenses.
[20] The deceased was diagnosed with melanoma cancer duri ng 2012. The
applicant took care of him for the next 11 years, nursing him and transporting him for
medical appointments and therapy. The deceased was always in charge of the
applicant’s finances and enjoyed full access and control over her money, as if it was
his own. Approximately R2 million of her money was transferred by him into his own
accounts during 2018. Between 2018 and 2023, it is accepted that the applicant paid
amounts far exceeding that paid by the deceased in relation to the parties’ expenses.
In 2023, the deceased had the applicant transfer two properties in her name, valued
at R800 000, without paying money to the applicant. The applicant avers that all the
money in the deceased’s accounts and properties registered in the deceased’s name
originated from the applicant’s income she received through her pharmacy, the
proceeds made through the sale of the pharmacy, through initial investments with
her funds and because of the applicant paying all the deceased’s living expenses for
44 years.
[21] The rental income generated from the two townhouse properties was invested
into savings and at times used to pay for living expenses. The applicant admits that
into savings and at times used to pay for living expenses. The applicant admits that
the deceased’s investments in respect of the sale of the Poly container business and
the townhou se development yielded substantial profit, and that the sale of assets
contributed to the purchase of the home in Potgietersrus. While the source of such
investments may have been the applicant’s capital, profit was yielded through
shrewd investment decisions by the deceased, who was a meticulous individual and
responsible for the management of the applicant’s funds, assets, investments,
budgets, income and expenditure. Farms that had been purchased were also sold
for a profit more than R2 million. The appl icant attributed this to mere luck, also
suggesting that any profit compensated for the losses sustained during the farms’
operation. The applicant also ascribed the increase in the value of the townhouse
property to ‘extraordinary growth in the property market at the time’. On the papers, it
must be accepted that such investments and returns on investment stand to the
credit of the deceased and cannot be ignored in the final analysis. It must also be
noted that the profit yielded from the sale of the farms was placed in a money market
account in the name of the deceased, while the applicant continued to pay for the
couple’s expenses.
[22] Given the way the couple operated, and despite working together in respect of
many endeavours, it is unsurprising that the deceased had significantly more money
in his estate than the applicant at the time of his passing: he was able to use money
from the applicant’s accounts for himself and pay the couple’s joint expenses from
her funds while saving money in his accounts. In addition, as indicated above, two
properties belonging to the applicant were transferred to the deceased during 2023
without any money being paid to the applicant. The deceased, who passed away by
suicide, changed his last will and testament so that the ap plicant, instead of
inheriting his entire estate, only inherited a Toyota bakkie, bequeathing the
remainder to the trust for the benefit of the church.
Redistribution
[23] The court in RP v PP 10 drew on the recognised authorities in restating the
applicable principles for redistribution as follows:
(a) The court must be satisfied on the facts that the claimant spouse has
contributed to the maintenance or increase of the estate of the other
during the subsistence of the marriage, and by reason of such contributi on
it would be just and equitable to make such redistribution order.
it would be just and equitable to make such redistribution order.
10 RP v PP 2016 (4) SA 226 (KZP) (RP) para 17 (references omitted).
(b) The contribution of a spouse may be direct or indirect and may consist in
services, including services rendered at home and in a business venture,
saving of expenses through such services, which obviates the employment
of someone to render the service, or may be a financial contribution.
(c) The court ought to take an overall view and make a just order in terms of
subsection (3), bearing in mind the existing means, obligations and need s
of the parties and all other relevant factors;
(d) The granting of redistribution is discretionary, and the courts are vested
with a very wide discretion to ensure that a just order is made, as
circumstances in each claim for redistribution may be widely div ergent.
Further, s 7(5)( d) authorises consideration of ‘any other factor which
should in the opinion of the court be taken into account’.
(e) The courts should avoid ‘guidelines’ or ‘starting points’ when determining
redistribution. The English approach that t he parties should share their
joint net assets equally, absent any contrary indication, has been rejected
by our courts. The known and unequal contributions of the parties are
relevant and cannot be disregarded.
(f) No limits are placed on the form and mechanics of the redistribution, nor is
a meticulous mathematical calculation required, nor should there be an
attempt to quantify the weight to be accorded to every relevant factor.
(g) Misconduct of the parties may be taken into account in determining the
equities of a s 7(3) redistribution if the conduct is such that it would be
inequitable to disregard it.
[24] It is a prerequisite to a successful claim under s 7(4) that, on a balance of
probabilities, the conduct relied upon by a claimant as a contribution in fact ca used
the alleged maintenance or increase of the other spouse’s estate. 11 Subsection (5)
prescribes the considerations which the court must consider in the determination of
the assets or part of the assets to be transferred in terms of a redistribution ord er.
the assets or part of the assets to be transferred in terms of a redistribution ord er.
First and foremost is the contribution by the one spouse to the estate of the other, by
which is obviously meant the nature and extent of the contribution. Thereafter, the
existing means and obligations of the parties must be considered, followed by an y
11 RP n10 para 22.
donation made or ‘any other factor which should in the opinion of the court be taken
into account’.12 Courts are not entitled, as a matter of course, to merely divide the
joint net assets of the spouses in a marriage equally, regardless of their respecti ve
known and unequal contributions. 13 In relation to the consideration of a spouse’s
‘services’ as a contribution to the increase or maintenance of the other spouse’s
estate within the meaning of subsections (3) and (4) of section 7 of the Act, evidence
which enables the court to put a money value on these services or what it would cost
to employ a person to perform them if the spouse had not performed them is not a
prerequisite to a finding that such a spouse has made a contribution within the
meaning of s s (3) and (4). To hold that such evidence is necessary would be to
confuse the jurisdictional facts necessary for an order in terms of s 7(3) and the way
the court is to exercise that power once it is established.14
[25] There can be no dispute that the applicant made a ‘contribution’ to the
deceased during the subsistence of the marriage. Indeed, the executor concedes as
much. The effect thereof was to directly and indirectly increase or maintain the
deceased’s estate. This occurred through the rendering of services in the household,
saving of expenses which would otherwise have been incurred, through the capital
and income made available to the deceased for savings and investment and by
virtue of the transfer of the applicant’s properties to the deceased during 2023. As a
result, and considering the accepted facts, it is apparent that it would be just and
equitable to make an order in terms of s 7(3) of the Act.
[26] It is necessary to consider the factors listed in s 7(5), including the various
forms of cont ribution made by the applicant, to determine the appropriate extent of
the redistribution to be ordered. As indicated, this is a matter within the unfettered
the redistribution to be ordered. As indicated, this is a matter within the unfettered
discretion of the court, including consideration of any factor which the court
considers relevant upon judicial assessment. 15 It is unnecessary to determine with
precise mathematical accuracy the totality of the contributions made by the applicant
12 Beaumont above n4.
13 Kritzinger v Kritzinger 1989 (1) SA 67 (A) at 77F–G.
14 Katz above n3 at 2D–E.
15 See Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA) (Bezuidenhout) paras 19–23, 26.
to the deceased’s estate, or indeed the exact present value of either the applicant or
deceased’s estate.
[27] As in Bezuidenhout v Bezuidenhout ,16 both the applicant and deceased
contributed in different ways to their joint financial situation, and with vastly different
levels of control. The deceased’s role requires greater appreciation than what he is
credited for in the applicant’s papers. Profits gained through commercial transactions
at his instance cannot be underplayed with reference to good fortune. In fact, the
deceased demonstrated a penchant for harnessing the couple’s savings for
purposes of investmen t, and the evidence reveals that he generally managed the
couple’s financial affairs successfully, albeit that this was grounded on income
earned by the applicant. That being the case, it would certainly be unjust to order a
transfer of all the deceased’s assets to the applicant.
[28] That said, it is accepted on the facts that the applicant’s direct and indirect
contributions and efforts, over the entire course of the marriage, were more
influential than that of the deceased in the increase and maintenance of the
deceased’s estate. This included the applicant’s role in earning a regular monthly
income for long periods of time, providing a reliable financial platform for the
deceased’s investment decisions, paying joint expenses and saving expenses for the
deceased in various ways during the marriage. The court also considers the fact that
the applicant was the primary caregiver of the children born of the marriage and took
responsibility for the household. In addition, she played the role of caregiver to the
deceased during his prolonged period of illness. The greater needs of the applicant,
in comparison to the estate’s obligations, have also been factored. 17 All these
considerations must be afforded due weight, without the need to attempt to quantify
the weight to be accorded to every relevant factor. 18 In my view the papers do not
the weight to be accorded to every relevant factor. 18 In my view the papers do not
make out a case for any misconduct on the part of the deceased to factor into the
assessment.19 A globular approach to redistribution in the matter is warranted in the
16 Bezuidenhout above n15 para 33.
17 Katz above n3 at 10I–11A.
18 Bezuidenhout above n15 para 29; RP above n10 para 17.7.
19 Cf RP above n10 para 41.
circumstances o f the matter. 20 On a holistic consideration of the various pertinent
factors described above, a redistribution order of 65% of the deceased estate is
considered appropriate.
Costs and conduct
[29] Leaving aside the issue of the in limine plea of non-joinder, discussed above,
it is appropriate for the estate to be ordered to pay the costs of the application on an
attorney and client scale. While the opposition may have been justified given the
applicant’s claim for transfer of all the estate assets, the basis an d extent of the
opposition was misdirected in various respects, as explained above.
[30] It is also necessary to comment on the conduct of the executor in two
respects. Firstly, it is lamentable that the executor failed to provide further details in
respect of the value of assets under his control, albeit subject to confirmation by the
second respondent, notwithstanding the applicant’s invitation to disclose the relevant
details. The court was thereby deprived of information that may have been material
to the outcome of these proceedings. As held in RP, the onus was on the parties to
place all factors of relevance to the adjudication before the court. 21 That principle
also puts paid to the suggestion that the applicant had placed unnecessary,
voluminous financial details before court. Secondly, the executor failed to advise the
applicant to seek independent legal advice in financial dealings with his client, the
deceased, in circumstances where this may have been appropriate. This pertains
specifically to the wa y properties belonging to the applicant were transferred to the
deceased without any payment, and the signature of loan documents following a
‘long intense meeting’ and ‘robust discussions’ in the executor’s presence. The
following remarks are apposite, al though in the present instance it was the legal
practitioner’s client’s wife that bore the brunt of the conduct:22
‘…the judgment should also serve as a salutary reminder to legal practitioners
‘…the judgment should also serve as a salutary reminder to legal practitioners
of the possible dire consequences for their clients in cases where they choose
20 See RP above n10 para 65.
21 RP above n10 para 60.
22 J.A.N v N.C.N [2022] ZAECMKHC 14 para 45.
to attempt to represent both parties in proceedings where money or rights are
involved. While these joint consultations may commence in a spirit of goodwill,
or in an attempt to expedite matters and save costs, once the shoe pinches , it
is inevitable that the legal practitioner, and by extension the profession, lands
in the crosshairs.’
Order
[31] The following order is issued:
1. The first respondent shall transfer sixty five percent of the assets of the
late G[...] J[...] V[...] (identity number 5[…]), as included in the Estate Late
G[...] J[...] V[...] (estate number 0[…]), to the applicant.
2. The first respondent shall take the necessary steps to transfer the assets
referred to in paragraph 1 to the applicant duri ng the winding -up of the
estate.
3. The first respondent shall pay the costs of the in limine plea of non-joinder
on an attorney and client scale, de bonis propriis, with costs of counsel on
Scale C.
4. The first respondent shall pay the costs of the applicatio n on an attorney
and client scale, with costs of counsel on Scale C.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 31 July 2025
Delivered: 12 August 2025
Appearances:
For the Applicant: Adv S Nel
Instructed by: De Bruyn & Morkel Attorneys
Menlopark
c/o Netteltons
Makhanda
For the First Respondent: Adv S Cole SC
Instructed by: Whitesides Attorneys
Makhanda