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[2019] ZASCA 137
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Goosen and Another v Wiehahn and Others (761/2018) [2019] ZASCA 137; 2020 (2) SA 341 (SCA) (1 October 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 761/2018
In
the matter between:
GERT
JOHANNES SCHEEPERS GOOSEN
FIRST APPELLANT
JOHANNA
MAGRIETHA GOOSEN
SECOND APPELLANT
and
ELSA
WILHELMINA
WIEHAHN
FIRST RESPONDENT
ABRAHAM
GERHARDUS GELDENHUYS
SECOND RESPONDENT
PHILLIPENTIA
JACOMINA JORDAAN
THIRD RESPONDENT
ELRETHA
HUYSHAMEN NO
FOURTH RESPONDENT
MASTER
OF THE HIGH COURT, KIMBERLEY
FIFTH RESPONDENT
REGISTRAR
OF DEEDS, KIMBERLEY
SIXTH RESPONDENT
Neutral
citation:
Goosen v Wiehahn
(761/2018)
[2019] ZASCA 137
(1
October 2019)
Bench:
Ponnan, Cachalia, Zondi, Dambuza and Nicholls JJA
Heard:
10 September 2019
Delivered:
1 October 2019
Summary:
Wills – interpretation of – nature of right –
right regulated by testamentary disposition – not a
pactum de contrahendo
.
ORDER
On
appeal from
: Northern Cape Division of the High Court, Kimberley
(Lever AJ sitting as court of first instance):
(a)
The appeal is upheld with costs.
(b)
The order of the court below is set aside and in its stead is
substituted the following: ‘The application is dismissed
with
costs.’
JUDGMENT
Ponnan
JA (Cachalia, Zondi, Dambuza and Nicholls JJA):
[1]
As Nugent JA observed ‘there
is nothing quite like a will for fomenting family dissension’.
[1]
The will in question in this case is that of the late Abraham
Gerhadus Geldenhuys (the testator). The testator’s property
included two farms described as Hunites and Holte. In his will
executed on 27 November 1990, the testator bequeathed the two farms
to his spouse, Alberta Johanna Geldenhuys (Mrs Geldenhuys), subject
to the following testamentary conditions:
‘
2.1.
The spouse of my daughter, Johanna Magrietha Goosen, born Geldenhuys,
will, in the event of my spouse intending to sell the
properties,
have the first option to buy the farm Hunites and/or the farm Holte
on the following terms:
2.1.1
The purchase price of the farm Hunites will be calculated at R20.00
per morgen and the purchase price of Holte will be calculated
at
R30.00 per morgen.
2.1.2
The purchase price(s) mentioned above shall be payable within 5 years
from date of registration together with interest calculated
from date
of registration of transfer on and amount and payment of which is
postponed, and at the rate of 7% annum and which interest
will be
payable together with the capital amount.
2.2
In the event of the property(ies) being sold, the proceeds thereof
together with interest must be divided as follows:
2.2.1
One half thereof to my spouse, Alberts Johanna Geldenhuys;
2.2.2
One half for equal distribution to my four children, Elsa Wilhelmina
Wiehahn, (born Geldenhuys), Johanna Magrietha Goosen,
born
Geldenhuys, Abraham Gerharduys Geldenhuys and Phillipenta Jacomina
Jordaan, (born Geldenhuys).
2.3
If my spouse does not sell one or both farms during her lifetime, the
spouse of my daughter, Johanna Magrietha Goosen (born
Geldenhuys),
shall have the option as described in clause 2.1 above, upon the
death of my spouse and for a period of 3 months thereafter,
to buy
the property (one or both) on and subject to the same terms as
described in clause 2.1 with sub- clauses above and subject
to the
conditions of clause 7 below.
2.4
If the options mentioned in clause 2.1 and 2.3 are not exercised, the
property shall be sold by way of public auction, subject
however to
the condition that if the offer received at auction is not accepted
by all legatees they will not be obliged to sell
the property at that
auction, but will have a further 12 months to sell the property as
they see fit, but will be obliged to sell
the property for the
highest offer received before the expiry of 12 months. In the event
of a sale as provided for in this clause
the proceeds will be divided
in equal shares between my four children mentioned in clause 2.2.2.’
Almost
three decades later, some of the testator’s children are at
loggerheads over the terms of clause 2.3 of the will.
[2]
After the death of the testator on 26 May 1997, the farms were
transferred to Mrs Geldenhuys, subject to the aforementioned
testamentary conditions. During June 2000 the latter sold and
transferred the farm Holte to Gert Johannes Scheepers Goosen (the
first
appellant), the spouse of the testator’s daughter, Johanna
Magrietha Goosen (the second appellant), in accordance with
the
provisions of clause 2.1 of the will.
[3]
Mrs Geldenhuys died on 5 December 2017. On 24 January 2017, and
within three months of her death, as stipulated in clause 2.3
of the
will the first appellant addressed the following letter to the fourth
respondent, the Executrix of the Estate of the late
Mrs Geldenhuys
(the executrix):
‘
Exercise
of Option – Farm Hunites
I
hereby inform you that I am going to exercise the option on the farm
Hunites, according to the terms of the Will of my late father-in-law,
AG Geldenhuys.’
On
30 March 2017 the executrix entered into a written agreement of sale
with the first appellant for the farm Hunites for the sum
of R176
200, being R20.00 per morgen as stipulated in clause 2.1.1 of the
will.
[4]
Approximately two months later, one of the testator’s
daughters, Elsa Wilhemina Wiehahn (the first respondent), launched
an
urgent application out of the Northern Cape Division of the High
Court, Kimberley. The appellants were cited in the application
as the
first and second respondents. The testator’s remaining two
children, Abraham Gerhadus Geldenhuys and Phillipentia
Jacomina
Jordaan, and the executrix, Master of the High Court, Kimberley and
Registrar of Deeds, Kimberley were cited as the third
to seventh
respondents respectively.
[5]
According to the first respondent, she was aggrieved that the
purchase price, fixed for the farm Hunites in terms of clause
2.1.1
of the will, was but a tiny fraction of its actual value of some R5,2
million. She claimed that this was ‘utterly unreasonable
and
clearly not what [her] late father contemplated at the time’.
Although the original notice of motion has not been included
in the
record, one can certainly glean the nature of the relief initially
sought by the reference to the first respondent’s
founding
papers. In this regard her founding affidavit reads:
‘
11.
This is an application under the common law to depart from the
provisions imposed by clause 2 of [the] will and testament of
Estate
Late Abraham Gerhardus Geldenhuys executed on 27 November 1990 (“
the
Testament
”) insofar as it restricts the purchase price of
the immovable property known as Farm Hunites . . . (“
the
Property
”).
12.
In the alternative, the application seeks the removal, alternatively
modification as the Honourable Court may deem fit, of the
restriction
imposed by clause 2 of the Testament on the Property in terms of the
Immovable Property (Removal or Modification of
Restrictions) Act 94
of 1965.’
Later
the first respondent added:
‘
28.
The Court will note from the relief sought (in [the] main) that I
essentially ask of this Court to depart from the Second and
Third
Restrictions of the Testament, in that the Property can be sold at
market value or such lesser amount as the Court may deem
fit, but
that the First Respondent will still have the first option to
purchase the Property should he wish to do so. In the alternative,
the Court will note that I seek essentially the same relief, albeit
under the Immovable Property (Removal or Modification of
Restrictions)
Act 94 of 1965. I submit that this is most sensible and
just towards the First Respondent.’
[6]
In time, the first respondent’s notice of motion came to be
substantially amended. In its amended form, it read:
‘
2.
That the written agreement of sale entered into between the First
Respondent and the Fifth Respondent on 30 March 2017 in respect
of
the property known as Farm Hunites, Farm Number 84 situated in
Namaqualand, Northern Cape and held by Title Deed Number T20365/98
as
registered with the Registrar of Deeds, Kimberley (“the
Property”) marked Annexure “F” hereto be declared
to be null and void;
3.
That the Fifth Respondent be ordered to deal with the Property in
accordance with clause
2.4
of the will and testament of Estate Late Abraham Gerhardus Geldenhuys
executed on 27 November 1990 marked Annexure “A”
hereto.
4.
That the Fifth, Sixth and Seventh Respondents do all things necessary
so as to give effect to paragraph 3 above’.
[7]
Importantly, no case for such relief had been made out in the first
respondent’s founding affidavit. The first hint of
a claim for
such relief is to be found in her replying affidavit. She there
stated:
‘
6.
However, before I do so, I wish to place the following before Court:
At the heart of the First and Second Respondents’
case (or
defense) is the so called option that was ostensibly extended to the
First Respondent in the Testament of my late father.
They solely rely
on clause 2.3 of the Testament and the purported exercise of such
option as a legal ground for the conclusion
of the deed of sale
entered into between the First Respondent and the Fifth Respondent in
respect of the Property.
7.
Put differently, the First Respondent contends that clause 2.3 of the
Testament constitutes an option to purchase immovable property
that
can be exercised by him. This contention of the First Respondent is
fundamentally flawed.
8.
I am advised that an option (a form of a
pacta de contrahendo
)
in respect of the sale of land is governed by the
Alienation of Land
Act 68 of 1981
. In particular, section 2(1) of the Act reads:
“
No
alienation of land after the commencement of this section shall,
subject to the provisions of section 28, be of any force or
effect
unless it is contained in a deed of alienation signed by the
parties thereto
or their agents acting on their written
authority.”
9.
Accordingly, an option in respect of the sale of land must . . . be
in (i) writing and (ii) signed by the parties thereto.
10.
Notably the so called option was not signed by the First Respondent,
rendering the option null and void or unenforceable. As
a result, the
First Respondent has neither a valid option in respect of the
Property, nor a right to claim transfer of the Property
in respect of
the Deed of Sale.’
[8]
That contention found favour with Lever AJ in the high court, who
granted the first respondent the relief sought in her amended
notice
of motion. In arriving at his conclusion that she was entitled to the
relief sought, Lever AJ reasoned:
‘
43.
In my view, what is contemplated by the provisions of clause 2.3 is
clearly an option. This would be subject to formalities
prescribed
under the Alienation [of Land] Act. It is common cause that such
formalities were not complied with. In such circumstances
the
applicant is entitled to have the sale of the farm Hunites, entered
into between the first and the fifth respondent on 30 March
2017,
declared null and void as contemplated in prayer 2 of the amended
Notice of Motion.’
[9]
As I see it, the reasoning and
conclusion of Lever AJ cannot be supported. It is important to
reiterate that when interpreting a
will, a court must strive to
ascertain the wishes of the testator from the language used.
Generally, the language used must be
construed in the context of the
circumstances that prevailed at the time the will was executed.
Moreover,
there
is
a
presumption
that
‘in
doubts
as
to
the
interpretation
of testamentary writings, that
construction should be adopted which would give effect to the
voluntas
of
the testator, rather than that which would nullify the
deed.’
[2]
[10]
Here, the testator had directed in his will that his executor must
transfer both farms to Mrs Geldenhuys, subject to the stipulated
conditions. In that regard, clause 2.1 found application during her
lifetime and clause 2.3 upon her death. It is clear that she
had to
adiate under the will before the rights conferred upon her thereunder
could become enforceable. Thus, although she acquired
dominium upon
transfer, she was not free to simply dispose of the farms as she saw
fit. Her right to do so was fettered by the
right granted to the
first respondent by the testator.
[11]
The first respondent did not acquire a real right to immediately
enforce transfer. Rather, he acquired a personal right that
was
enforceable: firstly, against Mrs Geldenhuys, during her lifetime,
and secondly, against her executrix, upon her (Mrs Geldenhuys’)
death. Having elected to sell Holte, Mrs Geldenhuys was obliged to
first offer it to the first appellant on the terms stipulated
by the
testator in clause 2.1 of the will. That she did, leading to the
conclusion of the resultant agreement of sale on the terms
stipulated
in clauses 2.1.1 and 2.1.2 of the will. The farm Hunites, not having
been sold during Mrs Geldenhuys’ lifetime,
fell to be dealt
with by the executrix in accordance with clause 2.3 of the will. In
that sense the executrix, who had ‘stepped
into the shoes’
of Mrs Geldenhuys, was as much bound by the testamentary conditions
as Mrs Geldenhuys had been during her
lifetime.
[12]
As with Mrs Geldenhuys during her lifetime, the first appellant had a
personal right that was enforceable against the executrix,
upon the
former’s death. Like Mrs Geldenhuys before her, the executrix
was also not free to simply dispose of Hunites. Clause
2.3 of the
will compelled the executrix to put the first appellant in the
position to exercise the right to purchase that farm
in accordance
with the terms of clause 2.1. In that respect, the nature of the
right conferred upon the first appellant by the
testator, in terms of
clause 2.3, was no different to that conferred in terms of clause
2.1. Any difference between the two, such
as there is, related to the
circumstances under which each fell to be exercised by the first
appellant. The right conferred by
clause 2.1 fell to be exercised by
the first appellant during the lifetime of Mrs Geldenhuys, and that
conferred by clause 2.3,
upon her death.
[13]
The first appellant could have
chosen never to enforce his right in respect of either farm. In that
event the will contains detailed
alternative provisions. But, he had
chosen in each instance to do so. The ‘real source’ of
the right in question in
this case is the ‘disposition by the
testator’.
[3]
The testamentary disposition was the ‘fons et origo’ of
the right.
[4]
The right is not a
pactum de
contrahendo
(an agreement
to make a contract), ‘as it has been regulated through a
testamentary disposition’.
[5]
In these circumstances, the eventual acquisition by the first
appellant of the property bequeathed would be an ‘acquisition
by succession’ and the fact that some ‘juristic act by
the beneficiary is a pre- requisite to his acquisition is not,
per
se
, a bar to such
acquisition being one by succession’.
[6]
[14]
It follows that Lever AJ misconceived the position and that the
application by the first respondent ought to have failed. Counsel
for
her was constrained to concede as much from the bar in this court.
[15]
In the result:
(a) The appeal is upheld with costs.
(b) The order of the court below is
set aside and in its stead is substituted the following: ‘The
application is dismissed
with costs.’
_______________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellant: JG Van Niekerk SC (with him SL Erasmus)
Instructed
by:
Haarhoffs
Inc., Kimberley
Honey
Attorneys, Bloemfontein
For
Respondent: LM Olivier SC
Instructed
by:
Van
De Wall Inc., Kimberley
Pieter
Skein, Bloemfontein
[1]
Van Deventer v Van Deventer & another
[2006] ZASCA 116
;
[2007] 3
All SA 236
(SCA) para 1.
[2]
Van Deventer v Van Deventer & another, fn 1 above, para 6 and
the cases there cited.
[3]
Executor, Estate Higginson v The Commissioner for Inland Revenue
1931 WLD 140
at 143.
[4]
Commissioner for Inland Revenue v Estate Kirsch and Others
1951 (3)
SA 496
(A) at 506D-507A.
[5]
Van Deventer v Ivory Sun Trading 77 (Pty) Ltd
[2014] ZASCA 169
;
2015
3 SA 532
(SCA) para 17.
[6]
Estate Roadknight and Another v Secretary for Inland Revenue
1973
(2) SA 339
(D) at 341F-G.