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[2015] ZAWCHC 104
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Hardie v Jansen and Others (19339/2014) [2015] ZAWCHC 104 (30 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE:
19339/2014
DATE:
30 JULY 2015
In the matter
between:
DIANA RUTH
HARDIE
....................................................................................................
APPLICANT
And
WINIFRED MAUD
JANSEN
...........................................................................
FIRST
RESPONDENT
THE DIRECTOR
GENERAL OF THE
DEPARTMENT OF
HOME
AFFAIRS
.......................................................
SECOND
RESPONDENT
FRANCES ELIZABETH
HARDIE
N.O
........................................................
THIRD
RESPONDENT
[In her capacity
as executor of the estate of the late Mr Keith Allanson Hardie]
THE MASTER OF THE
HIGH COURT
...................................................
FOURTH
RESPONDENT
JUDGMENT
DELIVERED ON 30
JULY 2015
GOLIATH, J:
[1] On 10 December 2013 the late
Professor Keith Allanson Hardie (“the deceased”) married
Winifred Maud Jansen (“first
respondent”), his caregiver
of four years, without the knowledge of his family. The applicant
seeks an order declaring the
marriage of her late father to first
respondent null and void, as well as ancillary relief. The first
respondent opposed the relief
sought.
[2] Applicant and her siblings became
aware of the marriage when they were contacted by Mr Eugene Pienaar
of First National Bank
regarding the management of the deceased’s
banking account. The bank had, due to unusual activity in the account
which had
commenced subsequent to him signing a power of attorney in
favour of first respondent in October 2013, considered it necessary
to investigate the transactions. From October 2013 until late January
2014 an amount in excess of R200 000,00 had been withdrawn
from the
deceased’s account. First respondent also transferred an amount
of R120 000,00 to her personal account. First respondent
also sought
to obtain the release of certain investments of the deceased. The
predominant concern was the deceased’s lack
of involvement in
respect of any discussion pertaining to his financial affairs. First
respondent also arranged a meeting with
the bank’s financial
advisors for the purposes of altering the deceased’s will. The
advisor declined to alter the will
due to the lack of participation
of the deceased.
[3] In 2008 the deceased was diagnosed
with Parkinson’s disease. The first respondent and her sister
were appointed as carers
to him. First respondent cared for him
during the week from Monday to Friday. Her sister cared for him over
weekends. The deceased
was frail and in 2009 underwent major bowel
surgery. During 2013 his health condition deteriorated to the extent
that he had to
have permanent full time care. The deceased was well
cared for by first respondent, who could drive and attended to
various duties
such as shopping for the home and taking the deceased
to the bank. The family had no knowledge of the existence of a
romantic relationship
between them.
[4] Due to his frail medical condition
and the covert manner in which the marriage was concluded the family
engaged the services
of various medical experts to assess the
deceased. It became apparent that the deceased was not capable of
managing his affairs
and making informed decisions. Consequently an
application was made for the appointment of a Curator ad litem to the
deceased.
A Curator ad litem was duly appointed and conducted her
investigations. However, the deceased passed away on 19 May 2014
before
finalization of her report. The Curator ad litem completed the
report on 29 May 2014 subsequent to his passing.
The Marriage Ceremony
[5] Ms Nozuko Antoni was the Marriage
Officer. She stated that marriage officers receive training and are
aware of certain specific
requirements that must be met failing which
a marriage could be void or voidable. On the day of the ceremony she
noticed that the
deceased was elderly, frail and shaking. None of his
family members were present and only a family member of first
respondent was
present. He seemed unaware that he was at the Offices
of Home Affairs and appeared disorientated. She confirms that first
respondent
conveyed to her that the deceased has dementia. She was
concerned that it would not be proper to conduct the marriage
ceremony
and the first respondent’s reassurances in respect of
the state of health of the deceased did not provide her with any
assurance.
She approached her supervisor, Amelia Arendse, and
conveyed her concerns to her. Ms Arendse insisted that she should
proceed and
despite her concerns conducted the ceremony. The
electronic system provides for contemporaneous notes to be made about
ceremonies
and she recorded her concerns. She recorded in the
marriage register that the husband has dementia.
[6] She requested her colleague Ms
Urias not to register the marriage immediately as she wished to
follow up the matter with the
Manager of the office and seek further
advice from the Home Affairs Head Office. However, first respondent
returned to the Home
Affairs Offices a few days later and went to Mrs
Meyer who provided her with the marriage certificate. Ms Antoni
stated that she
remains of the view that the advice given to her by
Ms Arendse was incorrect and that the marriage ceremony should not
have been
performed as Professor Hardie did not understand what he
was doing. Notes were also made on the system by her colleague Ms
Lesley-Ann
Urias. The notes read as follows:
“Client got married, suffering
from dimentia (sic), wife indicated her husband has dimentia, marr
officer asked the wife
what was wrong with husband when he was
shaking and she mentioned the sickness he has, marr officer went to
supervisor as well,
Ms Arendse to discuss the matter and informed
her, marr officer was told us as officials cannot interfere because
they made the
booking for marr appointment, and appointment was made
by the office manager”.
[7] Applicant contends that her father
made no mention of any marriage to any of his family members or
friends subsequent to the
ceremony. This is contrary to his nature
and illustrates in the family’s view that he was not aware that
it had taken place.
Applicant further contends that the secretive
nature of the ceremony, Ms Jansen’s attempts to liquidate
certain assets of
the deceased, and her attempt to procure a new will
demonstrate a lack of bona fides on her part and underscore the
belief that
Professor Hardie was induced into such marriage by the
first respondent for ulterior motives.
First Respondent’s contention
[8] First respondent confirms that she
met the deceased in 2008 when she was employed by applicant as her
father’s carer.
She cared for the deceased during the week and
her sister cared for him during weekends. She was aware that the
deceased was diagnosed
with Parkinson’s disease. They spent
time together on a daily basis and in 2009 a loving relationship
developed between them.
She began sharing a room with the deceased
and attended to the running of his household. The children of the
deceased were aware
of the relationship prior to 2013. She had lived
together with the deceased for approximately four years. The deceased
insisted
that they get married without informing his family as he
knew they would not approve.
[9] In opposing the Curatorship
application instituted after the marriage, she initially disputed the
fact that her husband was
suffering from dementia and contended that
there was no need to appoint Curators. She contends that he
understands when she communicates
with him. However, she admits that
it takes time for him to comprehend and respond but attributes this
to old age. She observed
that he did not communicate with his family
freely and openly. She expressed the view that she was not opposed to
the appointment
of a Curator to administer her husband’s
affairs. However, she should be able to obtain a second opinion.
According to her
the deceased voluntarily entered into the marriage.
[10] At the marriage office the
deceased shook uncontrollably as a result of Parkinson’s
disease which was witnessed by Ms
Antoni. Ms Antoni erroneously
perceived such shaking as him being disorientated. The fact that the
marriage officer performed the
marriage ceremony is conclusive proof
that the deceased had the capacity to enter into the marriage and no
expert evidence is required.
The deceased was in his full senses on
10 December 2013 when they got married and if not for his
Parkinson’s, he was fully
aware of what had transpired.
Furthermore, the applicant and her siblings were estranged from the
deceased and would accordingly
not be in a position to comment on his
state of mind.
[11] First respondent admits that Ms
Antoni requested Ms Urias to stall registration of the marriage until
such time as Ms Antoni
gave further instructions to proceed. However,
the fact that Ms Antoni performed the marriage meant that she was
satisfied that
both of them understood the proceedings and
consequences of their actions and this is definitive and indicative
of the fact that
the deceased had the necessary legal capacity to
enter into and consent to a valid marriage. Given such direct
evidence there is
no need to resort to medical or psychiatric
evidence.
[12] She was informed that the deceased
had dementia which worsened, but was never advised of the nature of
his condition. She also
contends that it was very difficult to
determine the exact date the dementia started. First respondent
vehemently denied that she
had squandered or dissipated the
deceased’s assets. According to her she was never requested to
account for withdrawals from
his banking account which were all
legitimate expenses. She admits that she facilitated the transfer of
funds from his account
to her personal account but same was used for
the benefit of the deceased.
Medical evidence
[13] Dr Gardiner is the Neurologist who
had been treating the deceased since 2010 in regard to his symptoms
of Parkinson’s
disease. First respondent obtained a report from
Dr Garner in respect of the Curatorship application. A subsequent
report was obtained
from Dr Gardiner at the request of the
applicant’s attorneys to clarify specifically the deceased’s
ability to appreciate
the consequences of entering into a marriage in
December 2013.
[14] Dr Dion O’Cuinneagain,
general practitioner to Professor Hardie, consulted with him on 1
February 2014. In his report
he indicates that on the MMSE he scored
9/30 which is, he states, “very low and puts him in the
advanced dementia category”.
He comments that since his last
consultation with Professor Hardie a year previously, he gained the
impression of “significant
advancement in his dementia”.
[15] Dr Irvine Eidelman assessed
Professor Hardie on 5 February 2014 (two months after the purported
marriage) and stated in his
report “I assessed him and he was
accompanied by his son and daughter and his wife, who supplied me
with collateral”.
Dr Eidelman states “he displayed
evidence of severe Parkinson’s disease as well as a dementing
illness having scored
15/30 on a mini mental examination. This is
indicative of a severe dementing illness and in my opinion is
irreversible” and
that in his opinion “this patient has
evidence of an irreversible dementing illness of the brain together
with severe Parkinson’s
disease” and that “this
patient is extremely vulnerable and gullible and therefore the
application is urgent”.
[16] Dr John Gardiner, a neurologist,
treated Professor Hardie from 2010 and indicated in his report dated
6 February 2014 that
he saw him regularly at 6 month intervals and
followed his progress being one of “progressive deterioration
in neurological
function”. He states that a precise diagnosis
was not clear because he had features of both Parkinsonism and a
progressive
dementia. Professor Hardie’s most recent
mini-mental state on 6 February 2014 revealed a score of 13/30 and
that “he
has lacked adequate insight into financial and legal
matters for at least the last year to 18 months”. Dr Gardiner
further
states: “I have no hesitation in holding the view that
this man was not capable of understanding his actions in December
2013”, actions meaning: “his ability to appreciate that
he was entering a marriage in December 2013”.
[17] Dr Michelle Jackson,
neuro-psychologist, assessed Professor Hardie on 13 February 2014. In
her report Dr Jackson states:
(a) “he does not have the ability
to hold things in mind long enough to think through things, problem
solve, or complete even
straightforward tasks”;
(b) “His clinical picture in its
entirety is dysexecutive – he presents with a highly typical,
and severe, sub-cortical
dementia. ... He lacks insight, and has a
poor grasp of his circumstances and situation”;
(c) “the patient has a classical
and advanced sub-cortical dementia; a degenerative process of
insidious, chronic and gradually
progressive cognitive decline that
has deprived him of insight into both his condition and situation,
and would have done so for
at least the last year, and likely longer.
As a result, he does not have the capacity to manage his own
financial or personal affairs”.
[18] In the report to this Court by the
Curator ad litem appointed to Professor Hardie she reports in respect
of Dr Gardiner’s
treatment of Professor Hardie, as conveyed to
her by Dr Gardiner when she attended on him at his rooms:
(a) “Dr John Gardiner, a
neurologist, took over the management of this condition in 2010. At
the first consultation on 12
October 2010 Professor Hardie complained
that his memory was poor. Due to the fact that it was undecided
whether there was a good
response to the medication, Dr Gardiner
diagnosed Parkinsonism, with an overriding picture of cognitive
decline, rather than idiopathic
Parkinson’s disease”,
(b) “Dr Gardiner reported that at
his consultation on 14 February 2011, Professor Hardie was worried
that he was no longer
able to concentrate on his research”,
(c) “[At the consultation] On 13
August 2011 he could no longer do calculations. He scored 25/30 on
the mini-mental state
examination and his thought processes were
slow”.
(d) “By [the consultation on] 10
January 2012 his score on the mini-mental state examination had
dropped to 20/30, although
when he came to the consultation in July
2012 he was still driving”;
(e) “[At the consultation] In
January 2013, Dr Gardiner did not conduct a mini-mental state
examination, but noted that Professor
Hardie was slow and required
assistance to walk”,
(f) “On 17 July 2013, he was
admitted to Constantiaberg Hospital as he was more confused than
usual” [Dr Gardiner saw
him in hospital];
(g) “At his routine appointment
on 6 February 2014, his mini-mental state examination score was 13/30
and his executive function
was severely impaired. During this
consultation [Ms Jansen] third respondent asked Dr Gardiner for a
report on Professor Hardie’s
condition”;
(h) “Dr Gardiner agreed with the
opinion expressed by Dr Irvine Eidelman in his report that Professor
Hardie was extremely
vulnerable and gullible. He stated that “his
condition predisposed him to be suggestible and open to coercion”
and
(i) “Dr Gardiner agreed with Dr
Jackson’s diagnosis and conclusions regarding Professor
Hardie’s lack of insight
and poor grasp of his circumstances
and situation”.
Application to file confirmatory
affidavit
[19] After the conclusion of argument
in this matter the applicant brought an application in terms of Rule
6(5) requesting leave
to file the confirmatory affidavit of Dr John
Gardiner dated 24 March 2015. Apparently it was due to an oversight
on the part of
the instructing attorney that a confirmatory affidavit
from Dr Gardiner was not obtained. The application was opposed by
first
respondent.
[20] In the confirmatory affidavit Dr
Gardiner confirmed that the Curator ad litem, Adv de la Hunt,
consulted with him and that
the information contained in her report
and memorandum correctly reflects information conveyed to her by him
in respect of Professor
Hardie. Furthermore, he confirms the contents
of two medical reports compiled by him which forms part of the
record. First respondent
did not challenge the correctness or
validity of any information in Dr Gardiner’s medical reports.
[21] The First Respondent conceded that
no new information is contained in the confirmatory affidavit.
However, first respondent
contends that the affidavit merely seeks to
confirm the condition of the deceased through various extracts from
the record, and
questioned why oral medical evidence was not led by
the applicant. It was submitted on behalf of first respondent that
the report
of the Curator is irrelevant since her report was compiled
after the death of the deceased. It is common cause that all the
information
contained in the confirmatory affidavit already formed
part of the court record, no new material is introduced, and it does
not
impact on the arguments and submissions made. First respondent
also conceded that no further response will be required should the
court allow the affidavit. In my view the first respondent failed to
indicate any prejudice should the affidavit be allowed. Having
regard
to the nature of the information contained in the confirmatory
affidavit, I was satisfied that there was no prejudice to
first
respondent if the confirmatory affidavit was allowed to be filed at
that stage of the proceedings. In any event I had no
difficulty in
allowing the confirmatory affidavit since the interests of justice
requires it. (See: Pangbourne Properties Ltd v
Pulse Moving CC and
Another
2013 (3) SA 140
(GSJ) at para 16).
The Law
[22] The legal position in South Africa
in respect of capacity to enter into a marriage is summarized in
South African Law of Husband
and Wife 5 (Ed) HR Hahlo p66 as follows:
“A person who, owing to mental
disease or defect, is incapable of understanding the nature of the
marriage contract, or the
duties and responsibilities which it
creates, free from the influence of morbid delusions, cannot contract
a valid marriage, nor
can his incapacity be cured by the consent of
his Curator. The reason is not the mental disease or defect as such,
but the absence
of a mind capable of understanding”.
(See: Pheasant v Warne 1922 (AD) 481;
Pienaar v Pienaar’s Curator
1930 OPD 171).
[23] As stated in Pheasant v Warne 1922
(AD) 481 at 487 “a consenting mind” is essential to
contractual validity. In
Pienaar v Pienaar’s Curator
1930 OPD
171
it was found that a person who because of some mental defect has
been declared incapable of managing his or her own affairs may
marry
if capable of understanding the nature of the marriage contract and
the responsibilities it creates. In Prinsloo’s
Curators Bonis v
Crafford & Prinsloo
1905 TS 669
at 672 - 673 it has been stated
that a lunatic, whether certified or not, can validly marry during a
lucid interval.
[24] In Vermaak v Vermaak 1929 (OPD) 13
at p 16 the court referred to Hunter v Edney
(1881) 10 P.D. 93
where
it was stated at 95 that the question is not merely whether the
respondent was aware that she was going through the ceremony
of
marriage, but whether she was capable of understanding the nature of
the contract entered into, free from the influence of morbid
delusions. In Durham v Durham
(1885) 10 P.D. 80
at 82 it was stated
that the capacity to enter into a valid contract of marriage is “a
capacity to understand the nature
of the contract, and the duties and
responsibilities which it creates”. The Court further stated
the following about the
contract of marriage at page 81:
“I may say this much in the
outset, that it appears to me that the contract of marriage is a very
simple one, which does not
require a high degree of intelligence to
comprehend. It is an engagement between a man and woman to live
together, and love one
another as husband and wife, to the exclusion
of all others. ... I agree with the Solicitor General, that a mere
comprehension
of the words of the promises exchanged is not
sufficient. The mind of one of the parties may be capable of
understanding the language
used, but may yet be affected by such
delusions, or other symptoms of insanity, as may satisfy the tribunal
that there was not
a real appreciation of the engagement apparently
entered into”.
[25] In Lange v Lange
1945 A.D. 332
at
p. 342, Tindall, JA stated that “It is clear, of course, that
if, owing to mental disease, a contracting party does not
understand
or appreciate the nature of the matter, the contract will be void;
for he could not be held to have consented to obligations
the nature
of which he could not understand”. The court also referred to
Hunter v Edney (supra) and Forster v Forster
(1923, 39 T.L.R. 658)
in
respect of delusions rendering a party mentally incapable of entering
into the contract of marriage and stated at p 343 - 344
that:
“the defendant must have
understood the nature of the contract and have appreciated the nature
of the obligations he was undertaking.
But the question is whether
his volition was not influenced by his mental disease and more
particularly by the auditory hallucinations
from which he suffered.
Of course it cannot be demonstrated that his volition was so
influenced. Whether it was or was not is
a matter of inference; but
it is legitimate to draw an inference on a balance of probabilities.
The evidence above mentioned, and
especially that as to his behaviour
before entering the Magistrate’s office to be married, seems to
me to render it highly
probable that his volition was so influenced”.
(See also Uys v Uys
1953 (2) SA 1
(E) at 2 F-H).
[26] In the Estate of Park, Park v Park
[1953] 2 All ER 1411
it was held that, in considering whether or not
a marriage is invalid on the ground that one of the parties was of
unsound mind
at the time it was celebrated, the test to be applied is
whether he or she was capable of understanding the nature of the
contract
which he or she was entering free from the influence of
morbid delusions on the subject.
[27] The Court of Appeal in the Estate
of Park, Park v Park [1953] (supra) restated the principle with
regard to capacity to marry
as follows at p 1430:
“Was the deceased ... capable of
understanding the nature of the contract into which he was entering,
or was his mental condition
such that he was incapable of
understanding it? In order to ascertain the nature of the contract
of marriage a man must be mentally
capable of appreciating that it
involves the responsibilities normally attaching to marriage.
Without that degree of mentality,
it cannot be said that he
understands the nature of the contract”.
[28] The consent to enter into a
marriage must be voluntary, and such consent must be to enter into a
marriage with the other party.
In Ex parte Marais and Another
1942
CPD 242
it is stated that the nullity of a void marriage is absolute.
Consequently, an annulment is not required, but merely a declaratory
order stating that the marriage is void. The effect of such
declaratory order is that none of the legal consequences follow,
including
any proprietary consequences.
[29] The authorities therefore
establish that the contract of marriage is a simple one which can be
readily be understood by anyone
of normal intelligence. It is not
sufficient that someone appreciates that he is taking part in a
marriage ceremony or understands
its words, but he must understand
the nature of the contract. The enquiry is therefore, “Did the
deceased understand the
duties and responsibilities that normally
attach to marriage?”
[30] From the outset it is necessary to
deal with first respondent’s contentions that the Curator’s
report is not relevant
to the proceedings. The Curator was appointed
on 8 April 2014 and was specifically empowered to report to court on
not only whether
the deceased was capable of managing his affairs,
but also the deceased’s capacity to enter into a contract of
marriage and
to assess whether it would be appropriate to institute
proceedings for the annulment of the marriage. The deceased died on
19 May
2014. At the time of Professor Hardie’s death the
Curator ad litem had conducted certain interviews with relevant
parties.
She was requested by the applicant to complete her report in
respect of these interviews since the report may be relevant to the
status of the marriage between the parties as well as the
administration of the deceased’s estate. She completed the
report
on 29 May 2014 and was discharged on 30 May 2014. The Curator
remains an officer of the court until discharged. The Curator was
fully empowered to investigate the circumstances of the purported
marriage of the deceased and I am satisfied that the Curator’s
report is relevant to the proceedings in this matter. In fact, the
Curator, as an officer of the Court is obliged to assist the
court in
the determination of this matter. (See Ex Parte Glendale Sugar
Millers (Pty) Ltd
1973 (2) SA 653
(N) at 659 H; Du Plessis N.O. v
Strauss 1988 (2) SA105(A) at 120 A-D).
[31] It is not disputed that the
deceased was diagnosed with Parkinson’s disease in 2008
resulting in the appointment of the
first respondent and her sister
as his carers. He subsequently underwent major surgery and needed
additional care. During 2013
his condition deteriorated and he was no
longer able to manage alone. First respondent continued to care for
him on practically
a full time basis except weekends.
[32] Dr Gardiner took over the
management of Professor Hardie’s medical condition in 2010 and
confirmed the diagnosis of Parkinson’s
disease with an
overriding picture of cognitive decline. Dr Gardiner saw Professor
Hardie at regular intervals and his condition
subsequently
deteriorated. In 2011 he could no longer do calculations; in 2012 his
score on the mini-mental state examination dropped
and in 2013 Dr
Gardiner observed that the he was slow and required assistance to
walk. Dr Gardiner confirmed that in July 2013
Professor Hardie was
admitted to hospital as he was more confused than usual. On 6
February 2014 his mini-mental state score had
deteriorated rapidly
and his executive function was severely impaired. It can therefore be
concluded that at the time of the marriage
in December 2013 the
deceased’s condition had deteriorated significantly since the
first respondent started to care for him
in 2008.
[33] Against this background the
circumstances surrounding the marriage needs to be assessed. There is
clear and unambiguous evidence
that the marriage officer was
concerned about his capacity to understand the marriage proceedings.
The conduct of Ms Antoni prior
and subsequent to the marriage is
indicative that she had grave concerns. First respondent’s
contention that the fact that
Ms Antoni conducted the marriage
ceremony reflected her satisfaction that the deceased had capacity to
enter into the marriage
is not borne out by what is stated by Ms
Antoni herself. In any case, a marriage officer’s belief that
the deceased had the
capacity to enter into the marriage is
irrelevant to the question before court as to whether the deceased in
fact entered into
the marriage of his own volition. A marriage
officer cannot impute capacity to a party.
[34] The concerns expressed by Ms
Antoni must also be assessed in conjunction with the medical
evidence. All of the medical experts
assessed the deceased in
February 2014, although Dr Gardiner saw him at regular intervals
since 2010. Dr O’Cuinneagain
concluded that his
condition was indicative of advanced dementia. Dr Eidelman concluded
that the deceased had an irreversible severe
dementing illness of the
brain together with severe Parkinson’s disease. Dr Michelle
Jackson stated that as a result of his
condition he lacks insight and
has a poor grasp of his circumstances and situation. Dr Eidelman
expressed the view that the deceased
was extremely vulnerable and
gullible. Dr Gardiner stated that he had no hesitation in holding the
view that the deceased was not
capable of understanding his actions
in December 2013, and lacked the ability to appreciate that he was
entering into a marriage
in December 2013. He also indicated that his
condition predisposed him to be suggestible and open to coercion.
[35] On the papers there appears to be
a dispute of fact with regard to the mental capacity of the deceased
and his ability to consent
to a marriage contract. Despite obtaining
the report of Dr Gardiner dated 6 February 2014 first respondent
disputes his expert
conclusion but failed to obtain a “second
opinion”. It is well established under the Plascon Evans Rule
that where
in motion proceedings disputes of fact arise in the
affidavits, a final order can be granted only if the facts averred in
the applicant’s
affidavit which have been admitted by
respondent, together with the facts alleged by the respondent justify
such order. (Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] (2) All SA 366
(A)). Cameron, JA stated the position as
follows in Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
para 55 and 56.
“[55] That conflicting affidavits
are not a suitable means for determining disputes of fact has been
doctrine in this court
for more than 80 years. Yet motion proceedings
are quicker and cheaper than trial proceedings and, in the interests
of justice,
courts have been at pains not to permit unvirtuous
respondents to shelter behind patently implausible affidavit versions
or bald
denials. More than 60 years ago, this Court determined that a
Judge should not allow a respondent to raise ‘fictitious’
disputes of fact to delay the hearing of the matter or to deny the
applicant its order. There had to be a ‘bona fide’
dispute of fact on a material matter. This means that an
uncreditworthy denial, or a palpably implausible version, can be
rejected
out of hand, without recourse to oral evidence. In
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, this Court
extended
the ambit of uncreditworthy denials. They now encompassed
not merely those that fail to raise a real, genuine or bona fide
dispute
of fact but also allegations or denials that are so
far-fetched or clearly untenable that the Court is justified in
rejecting them
merely on the papers.
[56] Practice in this regard has become
considerably more robust, and rightly so. If it were otherwise, most
of the busy motion
courts in the country might cease functioning. But
the limits remain, and however robust a court may be inclined to be,
a respondent’s
version can be rejected in motion proceedings
only if it is ‘fictitious’ or so far-fetched and clearly
untenable that
it can confidently be said, on the papers alone, that
it is demonstrably and clearly unworthy of credence”.
[36] In National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 26 Harmse, JA
stated that if a “version consists of bald or uncreditworthy
denials, raises fictitious disputes
of fact, is palpably implausible,
far-fetched or so clearly untenable the court is justified in
rejecting them merely on the papers”.
In Buffalo Freight
Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another
2011 (1)
SA 8
(SCA) at 14, 15 para 21, Shongwe, JA said this could be done
where “the version propounded by the respondents was fanciful
and wholly untenable”. In Wightman t/a JW Construction v
Headfour (PTY) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at para 13 the
court noted that:
“A real, genuine and bona fide
dispute of fact can exist only where the court is satisfied that the
party who purports to
raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed”.
[37] First respondent did not present
any medical evidence to refute the conclusions of the medical experts
nor did she seriously
address the issue of the mental condition of
the deceased at the time of the marriage. In the absence of tangible
evidence justifying
first respondent’s version with regard to
the mental condition of the deceased it would serve no purpose for
the court to
refer the matter to oral evidence when it is apparent
that viva voce evidence is unlikely to disturb what appeared from the
papers.
It would only result in unnecessary costs and unnecessary
delays. (Wallach v Lew Geffen Estates CC
[1993] ZASCA 39
;
1993 (3) SA 258
(AD) at 263
G- I). I am satisfied that the facts and circumstances of this matter
called for the adoption of a common sense and
robust approach.
(Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and
Another (supra) at 14 A-D).
[38] First respondent alluded to a
cohabitation arrangement with the deceased, claiming they had lived
together for a period of
four years. She was initially appointed as a
carer, who was remunerated for her services. The pattern of the carer
arrangement
remained unchanged from its inception until the death of
the deceased. It is not disputed by first respondent that after the
marriage
she continued to return to her flat in Kenilworth each
weekend while her sister cared for the deceased. This is not
consistent
with first respondent’s averment that she had moved
into the residence and shared a room with the deceased. If a
cohabitation
arrangement existed there would have been no need for
her sister to care for him during weekends since the nature of the
relationship
would have been redefined. As a cohabitant she would
have assumed new responsibilities and obligations in respect of the
relationship.
This would have continued after the marriage.
[39] It is highly unlikely that any
form of cohabitation existed without the knowledge of the family.
There is no reason why it
should have been regarded as a secret. On
first respondent’s own version the family witnessed them acting
in a loving manner
towards each other and were aware that they shared
a room on occasion, yet no one objected. According to the applicant
there were
suggestions that they, in past years, had been intimate on
occasion. However, the applicant had no personal knowledge of an
intimate
relationship. Applicant contends that first respondent had
never been presented as anything other than a carer and employee, and
was never regarded as her father’s partner. It is evident that
the deceased and first respondent had not established or maintained
a
joint household and the first respondent never contributed towards
any expenses. On the contrary, the evidence incontrovertibly
points
in one direction, namely, that the first respondent benefited unduly
by controlling the financial affairs of the deceased
to her own
benefit. She failed to provide an account for large sums of money
withdrawn from the account of the deceased. I am satisfied
that
neither evidence of a cohabitation arrangement prior to the marriage
nor any evidence of the existence of a normal marital
relationship
after the marriage was presented. In fact, it can safely be concluded
that the relationship remained that of patient
and carer.
[40] The first respondent must have
been aware that the deceased had health challenges and limited
capabilities. She personally
informed the marriage officer that the
deceased had dementia and Parkinson’s but alluded to
uncertainty surrounding his condition
in her replying papers. The
deceased could not take care of his own person and first respondent
attended to his personal affairs.
She attended to his financial
affairs and daily withdrawals. The deceased effectively relinquished
control of his affairs to first
respondent by granting her power of
attorney over his affairs in October 2013. Bank officials also stated
that first respondent
took control of his financial affairs whilst
the deceased appeared blank, disinterested and lacked participation
in his affairs.
First respondent failed to explain why the need arose
for her to control all the affairs of the deceased.
[41] The first respondent attempted to
persuade the court of her bona fides in entering into a marriage with
the deceased. At the
time of the marriage the deceased was a frail 84
year old male with significant cognitive deficiencies. It can
reasonably be concluded
that first respondent, who had spent time
with him on a daily basis, must have observed the deterioration in
his condition. It
is questionable whether the deceased would have
granted her power of attorney over his affairs at his own volition.
He assumed
the role of a bystander while first respondent dealt with
banking officials and managed his affairs. Having regard to the
mental
capacity of the deceased at the time of the conclusion of the
marriage as concluded by the medical experts, it is highly improbable
that the deceased would have initiated and conspired with first
respondent to marry in a covert manner. It is also questionable
whether he meaningfully appreciated the reciprocal duties and legal
obligations attached to a cohabitation arrangement or marriage.
These
conclusions are congruent with the medical findings that he was
mentally predisposed to gullibility, suggestibility and coercion.
[42] First respondent avoided to
respond to pertinent issues, failed to engage with disputed facts,
and created a fictitious dispute
regarding the mental capacity of the
deceased in the face of overwhelming expert medical evidence. The
averments made by the applicant
that a normal romantic relationship
had developed between them leading to the marriage are palpably
implausible, so far-fetched,
and clearly untenable and stand to be
rejected.
[43] It is clear that at the time of
the marriage the deceased had a number of pre-existing diagnoses that
were affecting his cognition
and capacity to live independently. From
the medical evidence it is clear that his abilities were seriously
impaired at the time
of assessment. His cognitive impairments were in
an advanced stage and affected his ability to make decisions. The
deceased had
significant cognitive deficiencies which clearly
prevented him from being able to understand the consequences of his
marriage.
All of the experts and the Curator ad litem are satisfied
that the deceased was not capable of providing valid consent to the
marriage.
With mini-mental state examination scores of 9/30 and 13/30
two months before the marriage, Professor Hardie could clearly not
have had the capacity to appreciate the duties and responsibilities
which the marriage agreement created. I therefore conclude
that
Professor Hardie did not, as a matter of fact and law, have legal
capacity, including contractual capacity, to conclude a
marriage with
Winifred Maud Jansen on 10 December 2013.
[44] With regard to costs, the general
rule is that costs are to follow the event. The applicant, as a
successful party, would ordinarily
be entitled to costs in her
favour. This general rule should only be departed from in exceptional
circumstances. The first respondent
is in her senior years and her
conduct in taking advantage of the deceased who trusted her cannot be
condoned. This is a regrettable
set of circumstances which
undoubtedly has caused much distress to the family of the deceased.
Understandably, there is tension
between the parties and I deem it
undesirable to make matters worse by granting a costs order against
the first respondent. I am
therefore satisfied that justice and
fairness would be best served if no costs order is made against first
respondent.
[45] In the circumstances the following
order is made and it is declared that:
45.1. Keith Allanson Hardie, due to his
mental condition, was not capable of consenting to a valid marriage;
45.2. The marriage concluded between
Keith Allanson Hardie and Winifred Maud Jansen on 10 December 2013 is
null and void;
45.3. The void marriage did not vest
ownership or any other rights in any portion of Keith Allanson
Hardie’s estate in Winifred
Maud Jansen.
[46] It is ordered that the Applicant’s
costs be paid out of the estate of the late Keith Allanson Hardie.
GOLIATH, J
Judge of the High Court