SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 52392/2021
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 6 January 2026
SIGNATURE
In the matter between:
M[...] K[...] Plaintiff
and
A[...] K[...] First Defendant
MOMENTUM METROPOLITAN LIFE LTD Second
defendant
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JUDGMENT
JANSE VAN NIEUWENHUIZEN J
Introduction
[1] This matter concerns the proceeds of a living annuity policy (“the policy”)
purchased by L[...] J[...] K[...] , who passed away on 17 July 2021 (“ the
deceased”), during his lifetime.
[2] The plaintiff is the widow of the deceased, the first defendant is the daughter of
the deceased born from a previous marriage and the second defendant is the
entity that issued the policy.
[3] The plaintiff’s claim is based on a written beneficiary nomination signed by the
deceased on 25 June 2021 (“June nomination”) in favour of the plaintiff. The
plaintiff contends that the aforesaid beneficiary nomination is the last and only
nomination signed by the deceased prior to his death.
[4] On 19 July 2021, two days after the passing of the deceased, the first defendant
submitted a beneficiary nomination dated 15 July 2021 (“July nomination”) to
the second defendant. In terms of the beneficiary nomination, the deceased
nominated the first defendant as beneficiary of the proceeds of the policy.
[5] The plaintiff avers that the beneficiary July nomination is invalid, alternatively
null and void, for one or more of the following reasons
5.1 the first defendant, misrepresented, alternatively fraudulently
misrepresented, the July beneficiary nomination as an amendment of
the June beneficiary nomination;
5.2 the first defendant did not have the authority to amend the beneficiary
nomination, on the basis of the power of attorney or otherwise;
5.3 the first defendant did not have the authority to benefit herself as an
agent of the deceased;
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5.4 the amendment of the beneficiary was only presented to the second
defendant after the deceased’s passing;
5.5 the amended beneficiary nomination was incorrectly presented as a
signed beneficiary nomination, when in fact it was signed in and during
July 2020 and duplicated and amended on 15 July 2021 or 19 July
2021.
[6] The first defendant denies that the June nomination was the last and only
beneficiary signed by the deceased and pleaded that the last valid nomination
is the July nomination.
[7] The second defendant filed a notice to abide by the decision of the court.
Facts common cause between the parties
[8] The following facts are common cause between the parties:
8.1 the deceased purchased the policy on 23 October 2012 and nominated
the plaintiff to receive the proceeds of the policy on his death;
8.2 the deceased signed a General Power of Attorney on 9 September
2019 in terms of which he nominated the first defendant as his agent for
purposes of managing and transacting his affairs;
8.3 the deceased signed a beneficiary nomination form on 9 September
2019 in favour of the first defendant and signed a will bequeathing his
estate to the first defendant;
8.4 the deceased signed a new will on 22 January 2020 bequeathing his
estate to the plaintiff;
8.4 the first defendant signed a beneficiary nomination form on 6 May 2020,
in her capacity as agent of the deceased, in favour of the plaintiff;
8.5 the first defendant signed a beneficiary nomination form on 9 July 2020,
in her capacity as agent of the deceased, in favour of herself;
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8.6 the first defendant signed a beneficiary nomination form on 24 June
2021, in her capacity as agent of the deceased, in favour of the plaintiff;
8.7 the deceased signed a beneficiary nomination form in favour of the
plaintiff on 25 June 2021;
8.7 the first defendant signed a beneficiary nomination form on 15 July
2021, in her capacity as agent of the deceased, in favour of herself;
8.8 on 9 September 2021 the second defendant advised the parties that,
due to the uncertainty pertaining to the identity of the beneficiary that is
legally entitled to the proceeds of the policy, the proceeds of the policy
will not be paid until receipt of a court order declaring who is legally
entitled to the proceeds of the policy.
Evidence
[9] I propose to only refer to the evidence that is relevant to the issue s in dispute
between the parties.
[10] The plaintiff testified that deceased purchased the policy when he retired during
2012 and that she was the nominated beneficiary of the proceeds of the policy.
The monthly income from the policy was paid into their joint account from which
all the debit orders and “everything else” were paid. The plaintiff was in control
of the finances, and she opened a separate cheque account at Absa to enable
her to pay household expenses.
[11] The plaintiff testified that she discovered in January 2020 that the deceased had
changed his will. The deceased had health problems and whilst recovering from
his health problems he told the plaintiff that he had changed his will and that he
had bequeathed his estate to the first defendant. The deceased was crying
when he broke the news to the plaintiff and promised to change his will. T he
deceased signed a new will on 22 January 2020 bequeathing his estate to the
plaintiff.
[12] When asked whether she was aware of the circumstances under which the
deceased changed his will in 2019, the plaintiff testified that the first defendant
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and a certain Willie Kotze (“Willie”) visited them in Ohrigstad in 2019. The first
defendant told the plaintiff that she is taking the deceased for lunch to Pilgrim’s
Rest and although the plaintiff did not know it at that stage, Absa had apparently
phoned the deceased and informed him that his credit card was overdrawn.
[13] Upon his return from lunch, the deceased was upset and confronted the plaintiff
with the overdrawn credit card . The confrontation escalated an d, according to
the plaintiff, they had “a normal fight between husband and wife.” Willie Kotze
(“Willie”) shortly thereafter became the deceased’s financial advisor.
[14] The plaintiff testified that the deceased requested her on the 24th or 25th of June
2021 to change the password of his Momentum portfolio to a password only she
will know. He was no longer interested in accessing his portfolio and if he
wanted to know how much money there was, he would ask her.
[15] Whilst scrolling through the portfolio the plaintiff noticed that the first defendant
is the 100% beneficiary of the proceeds of the policy . She was extremely upset
by the discovery and asked t he deceased “now what the hell is going on here!” .
The deceased first phoned Wille but could not get hold of him. Thereafter he
phoned the first defendant and spoke in a harsh manner to her. Wille eventually
returned the deceased’s call and undertook to send a new nomination form. A
while later the deceased spoked to the first defendant again and the plaintiff
could hear the first defendant telling the deceased that “he must just sign the
paper”.
[16] The form that nominated the plaintiff as beneficiary was signed by the deceased
on 25 June 2021 and emailed to Willie . In an email dated 28 June 2021 Willie
confirmed that Momentum’s records had been updated accordingly.
[17] The plaintiff was referred to the first defendant’s version contained in an
affidavit filed in an urgent application brought by the plaintiff , in which the first
affidavit filed in an urgent application brought by the plaintiff , in which the first
defendant stated that the deceased , prior to effecting the changes in
September 2019, discovered that the plaintiff had stolen from him for a period
of 16 to 17 years, and that she had paid an amount of R 17 000, 00 per month
into an account that he was unaware of.
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[18] The plaintiff denied this and responded that the deceased was aware of the
account. The plaintiff explained that the account referred to is the Absa account
she opened to pay household expenses.
[19] It was put to the plaintiff that deceased wanted to divorce her prior to his death.
The plaintiff answered that she only became aware after the passing of the
deceased that divorce proceedings were apparently initiated.
[20] During cross-examination the plaintiff agreed that the deceased never informed
her that he had nominated the first defendant as beneficiary of the proceeds of
the policy. It was put to the plaintiff that the deceased did not inform her
because he did not want her to know. The deceased no longer trusted the
plaintiff.
[21] Hester Maria Joubert employed by the second defendant as the Head of Legal,
Wealth and Retirement products, testified next. Her evidence did not take the
issues in dispute any further. That concluded the evidence on behalf of the
plaintiff.
[22] The first defendant testified she had an extremely close relationship with her
father. The bond between them became stronger after her brother passed away
and they leaned on each for support. She spoke to her father at least once a
day and sometimes twice a day. They trusted each other unconditionally.
During a visit to the deceased in August 2019 the deceased indicated that he
wanted to change financial advisors and asked the first defendant whether
Willie Kotzee (“Willie”) , a friend of the first defendant would be able to assist
him. The first defendant put the two in contact and Willie became the
deceased’s financial advisor. Wille required FICA documents to assist the
deceased and the deceased asked the first defendant to help him to obtain the
documents.
[23] The deceased did not want the plaintiff to know that he is changing financial
advisors, and they told the plaintiff that they were going for lunch. They
proceeded to the bank to obtain bank statements and when the deceased saw
proceeded to the bank to obtain bank statements and when the deceased saw
the statements he, according to the first defendant: “absolutely went in shock. He
was shaking and he could not understand what was going on”. The reason for his
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shock has already been canvassed in the evidence of the plaintiff. The first
defendant testified that deceased became very angry and that they had to stop
halfway home in order for her to calm him down.
[24] Upon discovering that the plaintiff had, according to the deceased, stolen
money from him, t he deceased phoned Willie and told Willie that he does not
trust the plaintiff with the wishes he had. Previously the deceased ’s estate
would be bequeathed to the plaintiff, and the plaintiff had to make sure that the
value of deceased’s estate is looked after. Upon the plaintiff’s passing the first
defendant would inherit everything from the plaintiff. The deceased, however,
became afraid that the plaintiff will not look after his estate and that she will not
care for the first defendant. This informed his wish to change everything to the
first defendant, because he trusted her to look after the plaintiff.
[25] This led to the signing of the will, beneficiary nomination form and power of
attorney on 9 September 2019. The deceased was very disappointed with the
plaintiff’s behaviour and informed the first defendant that he wanted to divorce
the plaintiff. The first defendant consulted an attorney’s firm Miller, Bosman, Le
Roux and a consultation was set up with the deceased. The deceased’s health,
however, deteriorated after the consultation and he no longer had the energy to
proceed with the divorce.
[26] When the plaintiff became aware that the deceased ha d changed his will he
phoned the first defendant and told her that the plaintiff is treating him with
disrespect. The deceased just came out of hospital and he was very frail. He
told the first defendant that he felt extremely pressurised by the plaintiff’s
behaviour towards him and that he is going to change hi s will to pacify the
plaintiff.
[27] Insofar as the beneficiary nomination form of 6 May 2020 is concerned, the first
defendant testified that the deceased requested her to change all methods of
defendant testified that the deceased requested her to change all methods of
communication with Momentum directly to her. He did not want to receive any
communication from Momentum. In the beginning of May 2020, the deceased
phoned her and told her that Momentum had send quarterly statements to his
email address. The plaintiff had access to his emails and the deceased was
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concerned that the plaintiff might notice that she is no longer the beneficiary on
the policy,.
[28] The deceased requested the first defendant to change the beneficiary to the
plaintiff and gave her the password to his email account so that the first
defendant could make sure that there is no email communication from
Momentum.
[29] The deceased informed the first defendant that o nce all correspondence from
Momentum had ceased, she must change the beneficiary nomination back to
her name. On 9 July 2020 the deceased instructed the first defendant to
change the beneficiary nomination back to her name and she complied with the
instruction.
[30] On 24 June 2021 the deceased contacted the first defendant and he was very
distressed. He informed the first defendant that the plaintiff gained access to his
Momentum website without his knowledge. She could hear the plaintiff shouting
in the background and the deceased requested her to change the beneficiary to
the plaintiff. The first defendant got hold of Willie, signed the beneficiary
nomination form in favour of the plaintiff and instructed him to submit the form
as quickly as possible. Willie complied with her request and the beneficiary
was once again changed to the plaintiff.
[31] On 25 June 2021 after the form was already submitted to Momentum, Willie
informed the first defendant hat he had also received a form from the deceased
and that the deceased insisted on proof that the form was submitted. The first
defendant knew that the plaintiff had access to the deceased’s emails and that
the plaintiff was unaware of the power of attorney in terms of which the first
defendant changed the beneficiary o f the policy. She was afraid of what the
plaintiff might do if she became aware of the power of attorney and requested
Willie to inform the deceased that the form signed by the deceased was
submitted to Momentum. The first defendant testified that she wanted to protect
the deceased from being harassed by the plaintiff.
the deceased from being harassed by the plaintiff.
[32] During July 202 1 the first defendant spoke to the deceased, and he informed
her that he is not well at all and that she needs to change the beneficiary
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nomination to her . The first defendant was on a trip in the Cape and phoned
Willie to assist with the deceased’s wish. The first defendant took an old
nomination form used tipex to change the date and gave the form to Willie who
had travelled to Vredenburg that was close to where she was at that stage.
[33] The first defendant testified that she was hesitant to submit the form because: “I
was afraid for my father of putting him in that situation at home and with the wife.
Because the situation with him being in that vulnerable situation and having this
person giving him a ha rd time, I was afraid that she could see that I would be the
beneficiary. And I was afraid for that to happen.”
[34] When she gave the form to Willie she told him that he should not submit the
form immediately. On the 16 th of July 2020 the deceased phoned her and was
anxious to know whether the form had been submitted. The deceased passed
away the next day and the first defendant requested Willie to submit the form.
[35] Willie testified next and his evidence corroborated the evidence of the first
defendant in all material aspects.
Discussion
Power of Attorney did not authorise the first defendant to amend the beneficiary
nomination
[36] The Power of Attorney provides a wide range of powers to the first defendant
which include the power to sign or execute any Deed or Instrument in writing as
effectually as the deceased might or could have done it personally. The
beneficiary nomination form is an Instrument in writing, and the first defendant
was accordingly authorised to sign the form on behalf of the deceased. Mr van
Zyl, counsel for the plaintiff , to his credit, did not persist with this point during
argument.
First defendant in her capacity as agent may not nominate herself as
beneficiary
[37] As a general principle a n agent may not benefit from any business and/or
transactions concluded on behalf of his/her principle. The law on this point was
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succinctly summarised in Philips v Fieldstone Africa (Pty) Ltd and Another 2004
(3) SA 456 (SCA) at para [30]
“[30] The principles which govern the actions of a person who occupies a position of
trust towards another were adopted in South Africa from the equitable remedy of
English law. The Roman and Roman -Dutch law provided equivalent relief. In
Transvaal Cold Storage Co Ltd v Palmer 1904 TS 4 at 19 - 20 and 34 - 5 the sources
were considered and the conclusion was expressed that the extension and refinement
of the Civil Law by English courts was a development of sound doctrine suited to
'modern conditions'. The fullest exposition in our law remains that of Innes CJ in
Robinson v Randfontein Estates Gold Mining Co Ltd (supra at 177 - 80). It is, no
doubt, a tribute to its adequacy and a reflection of the importance of the principles
which it sets out that it has stood unchallenged for 80 years and undergone so little
refinement.
'Where one man stands to another in a position of confidence involving a duty to
protect the interests of that other, he is not allowed to make a secret profit at the
other's expense or place himself in a position where his interests conflict with his
duty. The principle underlies an extensive field of legal relationship. A guardian to his
ward, a solicitor to his client, an agent to his principal, afford examples of persons
occupying such a position. As was pointed out in The Aberdeen Railway Company v
Blaikie Bros (1 Macq 461 at 474), the doctrine is to be found in the civil law (Digest
18.1.34.7), and must of necessity form part of every civilised system of jurisprudence.
It prevents an agent from properly entering into any transaction which would cause
his interests and his duty to clash. If employed to buy, he cannot sell his own
property; if employed to sell, he cannot buy his own property; nor can he make any
profit from his agency save the agreed remuneration; all such profit belongs not to
profit from his agency save the agreed remuneration; all such profit belongs not to
him, but to his principal. There is only one way by which such transactions can
be validated, and that is by the free consent of the principal following upon a
full disclosure by the agent. . . .” (own emphasis)
[38] Two principles emerge from the emphasised quotation, one; it is possible in law
for an agent to benefit from dealings concluded on behalf of his/her principle
and two; the benefit will, however, only be lawfully gained with the knowledge
and consent of the principle.
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[39] In casu the deceased was fully aware that the relevant beneficiary nominations
will benefit the first defendant. In possession of such knowledge the deceased
instructed the first defendant as his agent to proceed with the beneficiary
nominations in her favour.
[40] In the result, the firs t defendant in her capacity as an agent of the deceased
had the authority to , on instructions of the deceased, complete and submit the
beneficiary nominations that benefited her.
Misrepresentation alternatively fraudulent misrepresentation
[41] In order to succeed with her claim based on misrepresentation alternatively
fraudulent misrepresentation, the plaintiff had to allege and prove that the first
defendant in submitting the July nomination negligently alternatively being
aware, made a representation to the second defendant that was false, wrongful
and that the representation caused the plaintiff patrimonial loss.
[42] The plaintiff allege s that the July nomination was falsely presented by the first
defendant to the second defendant as a nomination signed on 15 July 2021
whereas the first defendant knew that the nomination was signed in and during
July 2020 and duplicated and amended on 15 July 2021.
[43] In considering the plaintiff’s allegation based on misrepresentation, it is
apposite to have regard to the terms of the policy in as far as t he deceased’s
right to nominate a beneficiary is concerned. C lause 10 the policy reads as
follows:
“10. We will pay the value of your investment to the beneficiary you have nominated
when you die. If you have not nominated a beneficiary we will pay the investment
value to your deceased estate.”
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[44] Although t he terms of the policy do not prescribe a specific procedure to be
followed in nominating a beneficiary, it emerged during evidence that the
second defendant utilised the beneficiary nomination form for this purpose.
[45] The second defendant’s choice does, however, not change the terms of the
policy. All that is required in terms of clause 10 is proof that the deceased
nominated a beneficiary prior to his death. The duplicated and amended form
signed by the first defendant on 15 July 2021 is proof of the beneficiary
nominated by the deceased prior to his death and complies with clause 10 of
the policy.
[46] In the result, the first defendant did not make a false and wrongful
representation to the second defendant.
Amendment invalid because it was effected after the deceased’s death
[47] It is not a term of the policy that the that the nomination of a beneficiary had to
be effected prior to the deceased’s death. As stated supra the only requirement
is that the deceased had to nominate a beneficiary prior to his death.
[48] Consequently, the fact that the amendment was only effected after the death of
the deceased does not affect the validity of the nomination.
Conclusion
[49] In the result, the plaintiff has failed to establish on a balance of probabilities that
the nomination of the fist defendant as beneficiary of the proceeds of
deceased’s policy is invalid and the plaintiff’s claim stands to be dismissed with
costs. The matter is of sufficient complexity to warrant counsel’s fees on scale
C.
Order
The plaintiff’s claim is dismissed with costs. Counsel’s fees on scale C.
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___________________________
JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
DATE HEARD:
09 September 2025
DATE DELIVERED:
6 January 2026
On behalf of the applicant: Adv H.C Van Zyl
Instructed by : Saltzman Attorneys
On behalf of the first respondent: Adv.J.F Van Der Merwe
Instructed by: Brits & Matthee Attorneys
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