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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO.: 2025-153924
In the matter between:
VIOLET ANN MURPHY MCHARDY Applicant
and
DANIEL RYAN MARSH NO First Respondent
MASTER OF THE HIGH COURT, PIETERMARITZBURG Second Respondent
ORDER
In the result, I grant the following order:
1. The applicant's application is dismissed with costs.
2. The costs of the application shall be paid from the estate of the late Mr Jan Lucas
Bakels and such costs to be taxed on scale B.
JUDGMENT
Chithi J
[1] The crisp issues in this case are:
(a) whether the applicant's right to receive rental income from the property in
respect of which she is a usufructuary became enforceable immediately upon the
death of the deceased, or whether its enforceability was postponed until the
confirmation of the final liquidation and distribution account by the Master of the
High Court, Pietermaritzburg (the Master); and
(b) whether there has been a non -joinder of beneficiaries and legatees in
terms of the last will and testament (the Will) of the late Mr Jan Lucas Bakels (the
deceased).
[2] On 2 September 2025, the applicant instituted an application in which she sought
an order to the following effect:
(a) That the applicant, in her capacity as usufructuary in terms of the Will of
the deceased, dated 7 October 2018, be declared:
(i) To have the sole and exclusive right to lease the property situated
at No. 1[...] L[...] M[...] Avenue, Palm Lakes, Umhlali (*the Property"); and
(ii) To be solely entitled to all benefits of the Property, including all
rental income, effective from the date of the death of the deceased.
(b) That the first respondent is interdicted and restrained from collecting,
receiving or retaining any rental income derived from the Property for so long as
the applicant remains the usufructuary in terms of the Will.
[3] The first respondent is the executor of the deceased estate who was duly
appointed in terms of the letters of executorship dated 26 May 2024 and has been cited
in these proceedings in her official capacity as such. The second respondent is the
Master who is the functionary responsible for the supervision of the administration of the
deceased estates in terms of the Administration of Estates Act 66 of 1965. While the
first respondent is opposing the application on the grounds which will be dealt with la ter
in this judgment, the Master is not opposing the application.
[4] The facts of this case are briefly that the applicant and the deceased, were
permanent life partners who resided at 1[...] L[...] M[...] Avenue, Palm Lakes. Umhlali.
The deceased passed away on 18 October 2022. Before he passed away, he executed
a Will in which he bequeathed a lifetime usufruct to the applicant.
[5] The relevant provisions of the Will read:
'2.
I hereby nominate, constitute and appoint MARINA CHRISTINA WADE lo be my
Executrix of my Estate and Administrator of the Trust created in this Will, granting
and giving unto her all such powers as are allowed or required by Law and
especially the power of assumption and ! direct that the said MARINA
CHRISTINA WADE shall not in either capacity be required to furnish security to
the Master of the High Court for the due administration of my estate.
3.
3.1 I bequeath to my grandson CHRISTOPHER RICHARD VAN
BAGGEM my Rado wristwatch.
3.2 I bequeath to VIOLET ANN MURPHY McHARDY my Toyota Corolla
bearing registration number N[...] and my 2012 Nissan X Trail Extronic
bearing registration number N[...] or any other replacement motor vehicles
which may be in my possession as at the date of my death.
3.3 I bequeath my immovable properly known as Unit 2[...] S[...]
Estates to my daughter AMANDA ELAINE VAN BAGGEM (born BAKELS)
in full and final settlement of a loan for R2 000 000:00 (two million rand)
made by my daughter to me on the 29th September 2014.
4.
The balance of my estate shall devolve upon the beneficiaries of my trust to be
established and to be known as the Jan Bakels Family Trust, namely: -
4.1 my daughter AMANDA ELAINE VAN BAGGEM (born Bakels) born
on the 30th July 1966 as a capital beneficiary;
4.2 my granddaughter JADE LIYA BAKELS, a daughter of my
deceased daughter NICOLLE DANIELLE BAKELS, as an income
beneficiary as well as a capital beneficiary.
5.
'5.1 I direct that my partner, Violet Ann Murphy McHardy, shall have a
lifetime usufruct over the property that I am residing in at the date of my
death, namely 1[...] L[...] M[...] Ave, Palm Lakes, Umhlali, which usufruct is
to be registered against the Title Deeds of the property.
5.2 I further direct that the Trust shall maintain the property and pay all
the levies, special levies, rates and taxes and other utility expenses during
her lifetime, to ensure that she suffers no financial hardship whilst in
residence.
5.3 In the event of Violet Ann Murphy McHardy choosing to vacate the
property, the usufruct will continue to fund her needs if she moves to the
frail care centre, and the trustees shall allow the property to be rented out
to fund this stay in the frail care.
[6] During October 2023, the applicant relocated from the property to a smaller unit
in the Palm Lakes Estate. In January 2024, due to her declining health the applicant
relocated to The Village Retirement Home's frail care facility, where she currently
resides.
[7] In terms of clause 2 of the Will 1, Ms Marina Christina Wade (Ms Wade) was
appointed as the executor of the estate. After the applicant relocated to Palm Lakes
Estate and later to The Village Retirement Home, Ms Wade leased the property to a
third party. The applicant alleges that while she is not entirely sure as to when Ms Wade
leased the property, she estimated that this must have been from about 1 November
2023. The property has been under lease since then to date, for a monthly rental of R25
000, which Ms Wade received and retained.
1 Master Bundle 1: Annexure C: Caselines: page 002-9.
[8] Furthermore, the applicant contends that Ms Wade never had any authority to
lease the property, whether in her capacity as the executor or otherwise. Moreover, the
applicant contends that the express provisions of the Will accorded her, as the
usufructuary, an absolute right which entitled her to lease the property to the exclusion
of all other persons and to collect the rent to fund her accommodation and living
expenses.
[9] The applicant points out that while initially she was not privy to the detail s
concerning the lease of the property, she was aware that from time -to-time Ms Wade
utilised some of the rental to subsidise her accommodation at the Palm Lakes Estate,
but not at The Village Retirement Home. The applicant contended that while she
indirectly received some benefit of the rentals for the leased property, this was not what
was contemplated by the Will.
[10] Following the death of Ms Wade on 28 May 2024, the first respondent was
appointed on 28 May 2024, as executor of the estate substituting Ms Wade. The
applicant contends that upon the first respondent's appointment as executor, the
applicant completely ceased to receive any benefit from the rental derived from the
property, whether by way of allowance or otherwise. The applicant points out that all
rentals in respect of the property were received and retained by the first respondent and
that this remains the position to date. The applicant contends that the cessation of these
benefits is contrary to the clear intentions expressed in the Will.
[11] What precipitated this application is a dispute between the applicant and the first
respondent on the question of whether the applicant as a usufructuary became entitled
to receive any benefits in terms of the Will immediately upon the death of the deceased ,
or whether those benefits were deferred until the confirmation of the final liquidation and
distribution account by the Master.
distribution account by the Master.
[12] The upshot of the first respondent's case is that the applicant is not entitled to
any rental income until such time as the usufruct has been registered against the title
deed and when the Master approved the final liquidation and distribution account.
Additionally, the first respondent contends that as an executor of the estate she was
obliged to ensure that the creditors of the deceased estate are paid before taking into
account the wishes of the deceased. The first respondent points out that in terms of
clauses 3.1 and 3.3 of the Will 2, the deceased's grandson, Christopher Richard van
Baggem and the deceased's daughter, Amanda Elaine van Baggem (Mr and Ms van
Baggem) are both legatees that stand to be affected by the order which the applicant
seeks. Moreover, in terms of clause 4 of the Will 3, both Ms van Baggem and the
deceased's granddaughter, Jade Liya Bakels (Ms Bakels) are named as the
beneficiaries of the trust intended for establishment.
[13] Consequently, the first respondent contends that if the applicant's interpretation
were to be accepted this then means that all rental income from the property would be
payable to her while the trust to be formed would still be held liable for the various
property expenses without the trust generating any income to meet these expenses.
The first respondent therefore contended that, the heirs and legatees in respect of the
estate have a direct and substantial interest in the subject matter of these proceedings
which may be adversely affected by the order which the applicant seeks, and they
accordingly ought to have been joined as parties to these proceedings.
[14] Mr Campbell, counsel for the applicant, submitted in the applicant's heads of
argument that neither the legatees in terms of the deceased's Will nor the beneficiaries
of the trust to be formed have any legal interest which may be prejudicially affected by
the order which the applicant seeks. 4 In any event, any potential prejudice which may
eventuate in consequence of what the Will itself contemplates is simply an inevitable
outcome. Furthermore, Mr Campbell submitted that even in the most unfavourable
outcome. Furthermore, Mr Campbell submitted that even in the most unfavourable
scenario, any potential disadvantage to the legatees and beneficiaries of the estate
2 Master Bundle 1: Annexure C: Caselines: page 002-9.
3 Master Bundle 1: Annexure C: Caselines: page 002-10.
4 Henri Viljoen (Ply) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at 170H-171B.
would be limited to financial implications, which is insufficient to justify their joinder to
these proceedings.5
[15] Mr Campbell submitted that where a usufruct is created an inference arises that
the ultimate beneficiary will have an immediate vested right,6 which in this case so the
argument went would be upon the date of death of the deceased, and from which point
the applicant was entitled to exercise her rights in respect of the property. It was
submitted further on behalf of the applicant that the bequest of a usufruct which is
unconditional, and the operation of which is not delayed or suspended in any way, vests
in the beneficiary a more testaloris.7
[16] It was submitted that clause 5.1 of the Will was unequivocal. It did not express or
even imply any suspension of the usufructuary's rights, nor did it make them in any way
conditional. The fact that the usufruct must be registered is a means of protection and
publicity and does not suspend the usufruct, or the rights in terms thereof, until its
registration. It was further submitted that similarly, the issues of the establishment of the
trust and/or the approval of the final liquidation and distribution account are
administrative processes which did not alter the legal position regarding the vesting of
rights. Lastly, regarding the nature of a usufructuary's rights in respect of the leased
property, the applicant relied on Willemse v Cronje and Others, 8 where the court held
that:
'It is apposite at this juncture to deal with what a usufruct actually entails in this
context. A usufruct is a legal right to occupy or use or rent out a property for the
usufructuary's benefit. In this instance the testator bequeathed the farm
properties to the first respondent subject to the second respondent's usufruct, to
make sure she has the means to take care of herself in her life time. In the
5 Hartland lmplemente (Edms) Bpk v Ena l Eiendomme BK en Andere 2002 (3) SA 653 (NC) at 663E -H;
Standard Bank of South Africa Ltd v Swartland Municipality and Others 2010 (5) SA 479 (WCC) at 11-14
6 Hilda Holt Will Trust v Commissioner for Inland Revenue 1992 (4) SA 661 (A) (Hilda) at 6671-6688.
7 Ex Parte Dickens: In Re Dugmore's Will 1944 GWLD 55 at 58-59; Viljoen v Lauw NO and Others [2023]
ZAFSHC 489 (Viljoen) paras 42-43.
8 Willemse v Cronje and Others [2024] ZAWCHC 270 (Willemse) para 43.
circumstances although the testator bequeathed the farm properties to first
respondent, he assumed the role of a bare dominium or registered owner of the
property without the right to use or benefit from it until waiver thereof the second
respondent's death. It follows therefore that the right to lease the properties is at
this point in time solely vested in the second respondent as the usufructuary and
not on the first respondent.'
[17] Based on Willemse, it was submitted on behalf of the applicant that the
applicant's rights as a usufructuary vested immediately upon the death of the deceased
and became exercisable and enforceable. It was submitted that, as a result, the
applicant became entitled to the use and enjoyment of the property, including receiving
all rental income derived from the leased property.
[18] Conversely, in the first respondent's heads of argument it was submitted that the
applicant conflated two distinct legal concepts namely:
(a) The vesting of a right (ie dies cedit); and
(b) The enforceability of that right (ie dies venit).
[19] It was submitted that dies cedit referred to the moment a right comes into
existence and becomes part of the beneficiary's estate, and that in the context of an
unconditional bequest, such as a usufruct, this is presumed to occur upon the death of
the testator ( a morte testatoris ). In relation to dies venit it was submitted that it by
contrast, refers to the moment when the right, which has already vested, becomes
enforceable, and enjoyment or possession of the subject matter can be claimed.
[20] Mr Temlett, counsel for the respondent argued that while the applicant's right to
the usufruct vested upon the death of the deceased, it was not yet enforceable against
the executor. It was argued on behalf of the first respondent that the authorities are
unequivocal that in the administration of deceased's estates, dies venit for an heir or
legatee is postponed until the final liquidation and distribution account is confirmed by
the Master.
[21] Mr Temlett submitted that in De Leef Family Trust and Others v Commissioner for
Inland Revenue ,9 the Appellate Division drew a clear distinction between the two
concepts. It was held that while a right may vest ( dies cedit ), it only becomes
enforceable (dies venit) after the confirmation of the relevant account by the Master. He
further argued that these principles were expressly applied by the full court in Govender
NO and Others v Gounden and Others,10 Koen J held that:
'[27] "... [T]he heir or legatee of an unconditional bequest obtains a vested right
(dies cedit ) to be entitled to the bequest on the death of the testator ( a morte
testatoris). Such a right is transmissible but his claim is enforceable only at some
future time when the executor's liquidation and distribution account has been
confirmed ( dies venit ). He then has an enforceable right to claim payment,
delivery or transfer of his bequest (ius in personam ad rem acquirendam) ..."
[28] In this case the estate accounts have not been approved by the Master.
Accordingly, an incorporeal vested right ( dies cedit) to the bequest had accrued
on the death of the deceased, but that right had not yet been transformed into an
enforceable right to claim payment, delivery or transfer of the inheritance.'
[22] Mr Temlett went on to distinguish the facts of this case from those of the
authorities referred to on behalf of the applicant. He submitted that Hilda dealt with the
question of when a right vests ( dies cedit) for purposes of determining tax liability. He
pointed out that Hilda confirmed that the vesting of an unconditional bequest occurs at
death. Mr Temlett argued that even if dies cedit occurred in this case, this would not
assist the applicant in establishing that dies venit also occurred. Mr Temlett suggested
that the applicant's reliance on the authorities cited by Mr Campbell, in support of the
that the applicant's reliance on the authorities cited by Mr Campbell, in support of the
9 De Leef Family Trust and Others v Commissioner for Inland Revenue 1993 (3) SA 345 (A) ( De Leef
Family Trust).
10 Govender NO and Others v Gounden and Others 2019 (2) SA 262 (KZD) (Govender). Also see De Leef
Family Trust at 358D-F
immediate enforceability of the usufruct, is misplaced and not borne out by those
authorities. Mr Temlett argued that the applicant's reliance on Viljoen was equally
misplaced. Mr Temlett pointed out that Viljoen concerned the interpretation of whether a
usufruct was conditional. The court's general statement that an unconditional usufruct
vests at the date of death simply affirms the principle of dies cedit. It does not support
the contention that dies venit occurs simultaneously, nor does it override the clear
statutory process of estate administration. Mr Temlett argued that the applicant when
instituting this application, she was litigating against the trust yet to be formed and is
asking for the gross rental income before the formation of the trust. This was
fundamentally flawed because what it means is that the applicant did not carefully
consider what the Will provided for. On this aspect, Mr Temlett, concluded by submitting
that while the applicant has a vested right, the applicant has no enforceable claim
against the first respondent for the fruits of that right (ie the rental income) until the
administration process of the estate is completed and the Master has confirmed the
liquidation and distribution account.
[23] Regarding the non -joinder of the legatees and the beneficiaries of the estate of
the deceased, Mr Temlett argued that this was fatal to the applicant's case because
they had a direct and substantial interest in the subject matter of these proceedings
which may be prejudicially affected by the order which the applicant seeks. Mr Temlett
suggested that on this ground alone the applicant's application should be dismissed with
costs.
[24] Neither issue presents a novel question of law, and both have been dealt with in
a substantial body of case law. For the purposes of this judgement, it is convenient to
start with the issue of joinder.
[25] The legal test for joinder of a party to any pending proceedings has long been
[25] The legal test for joinder of a party to any pending proceedings has long been
established, in Wassung v Simmons,11 the court held that:
11 Wassung v Simmons 1980 (4) SA 753 (N) at 759E - H; Also see Judicial Service Commission and
Another v Cape Bar Council and Another [2012] ZASCA 115; 2013 (1) SA 170 (SCA) para 12.
'... [A] party is to be joined if he has or may have a "direct and substantial
interest" in any order
the Court may make... "[D]irect and substantial interest" such as is there
mentioned has been held to be
"an interest in the right which is the subject -matter of the litigation and (is) not
merely a financial interest which is only an indirect interest in such litigation";
it is
"a legal interest in the subject-matter of the litigation"
excluding
"an indirect, commercial interest only."
It is to be noted that it is a "legal interest" in the proceedings which is relevant.'
[26] It is common cause that Mr and Ms van Baggem are both legatees in terms of
the Will, while both Ms van Baggem and Ms Bakels are named as the beneficiaries of
the trust to be formed. This in my view constitutes a direct and substantial interest in the
subject matter of these proceedings. The order sought by the applicant, that she is
immediately entitled to all rental income derived from the property would, if granted,
necessarily affect the financial position of the legatees and beneficiaries, who depend
on the orderly administration of the estate and the proper distribution of its assets. That
potential prejudice is sufficient to require their joinder. Consequently, there has been a
non-joinder of Mr and Ms van Baggem, and Ms Bakels from these proceedings.
[27] Regarding the question of when the rights of a usufructuary are enforceable,
there are no qualms about the applicant's rights as a usufructuary vesting immediately
upon her on the death of the deceased by parity of the reasoning in De Leef Family
Trust and in Govender,12 it is the exercisability and enforceability thereof which is
deferred until the confirmation of the final liquidation and distribution account by the
Master. The applicant's reliance on Willemse to contend for any rights in respect of the
rental income from the property does not have any foundation, in that, in Willemse farm
12 Ibid fn 7 above.
properties were leased without the applicant having been afforded her right of pre -
emption, and additionally, the usufruct had already been registered. Furthermore, in
considering this question, the express provisions of the Will have to be considered. This
is so because a Will, like any other legal document, must be interpreted in accordance
with the standard rules of interpretation.
[28] In King and Others NNO v De Jager and Others ,13 the Constitutional Court held
that:
'[34] The point of departure when interpreting wills is "to ascertain the wishes of
the testator from the language used in the will." Courts are obliged to give effect
to the wishes of the testator unless they are prevented by some law from doing
so. The 'golden rule' for the interpretation of wills and this inherent limitation is
famously described as follows in Robertson:
"The golden rule for the interpretation of testaments is to ascertain the wishes of
the testator from the language used. And when these wishes are ascertained, the
court is bound to give effect to them, unless we are prevented by some rule or
law from doing so." (Footnotes omitted.)
[29] Clause 5.2 of the Will contemplates that it is the trustees who are obligated to
ensure that the applicant does not go without during the subsistence of the usufruct.
This accords with the position in law what the testator contemplated was that it would be
the trustees whose duty it would be to look after the applicant and this would only be
possible after the establishment of the trust and, certainly, after the final liquidation and
distribution account has had been approved by the Master.
[30] For these reasons, the applicant's application is devoid of any merit and is
therefore unwarranted.
13 King and Others NNO v De Jager and Others [2021] ZACC 4; 2021 (4) SA 1 (CC).
Costs
[31] The general rule is that costs should follow the result. However, the issue of
costs is in the discretion of the court which must be exercised judicially. Mr Temlett
argued that costs should be paid by the estate. Although Mr Campbell did not make any
specific submissions regarding the issue of costs if this court found against the
applicant, it did not appear that he was opposed to Mr Temletfs submissions that costs
should be paid by the estate. After carefully considering this issue, this court is o f the
view that it would be fair and just for costs to be paid by the estate. To do so will avoid
unnecessarily burdening the applicant with an adverse cost order on the face of
financial challenges she may already be confronting.
Order
[32] In the result, I grant the following order:
3. The applicant's application is dismissed with costs.
4. The costs of the application shall be paid from the estate of the late Mr
Jan Lucas Bakels and such costs to be taxed on scale B.
Chithi J
Appearances
For the applicant: Mr G. Campbell
Instructed by: Martin Law Inc.
41 Westville Road
Westville
Durban
Tel: 031 266 1588
Email: andrew@martinlaw.co.za
Ref: MCH 1/0001
For the first respondent: Mr J. W. Temlett
Instructed by: HSG Attorneys Inc.
15 Acacia Avenue
Westville
Durban
Tel: 031 266 7751
Fax: 031 269.
Ref:450/M631
Email: Fuadd@hsginc.co.za
Date of hearing: 13 May 2026
Date of judgment: 17 June 2026