deceased estates case law 2005 to date

Deceased Estates Case Law 2005 to Date Cases involving a deceased party or estate

Extracted from the newsletter by Costa Divaris

© Costa Divaris South Africa 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021.

Monthly listing—Case law From 33 TSH 2005 to date

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Tax Shock, Horror—Deceased Estates Case Law Archive—© Copyright C Divaris Gauteng SA 2005 to date

3—An irreverent newsletter designed to keep you up to date—

Contents 1997 5 2000 5 2001 5 2008 5 2009 5 2010 5 2012 6 2014 7 2015 7 2016 8 2017 9 2018 9 2019 11 2020 13 2021 18



1997 High Court case 03 December 1997: Jones and Another v Beatty NO and Others 1998 (3) SA

1097 (T). On the Administration of Estates Act. Per MacArthur J: I have given careful consideration to these cases [Davids v Estate Hall, Smith] but I do not think a distinction of any real substance can be drawn in the application of s 35 between creditors and residuary heirs and, apart from the Smith case, there seems to be no reason why s 35 should be applied to the exclusion of the common-law remedy.…§

2000 SCA case 29 November 2000: CSARS v The Executor of the Estate of the Late Waldo Earl

Firth (404/99) [2000] ZASCA 94. This famous case forever changed SARS practice under s 4(q) (or para (q) of s 4, as some of us prefer to say) of the Estate Duty Act. But try to understand the judgment at your peril.*

2001 SCA case 18 May 2001: KSAID v Boedel Wyle A I J de Beer (328/99) [2001] ZASCA 63. A

case decided under s 4(m)(ii) of the Estate Duty Act (usufructuary interest created by predeceased spouse) before its amendment to read as it does today. Since the true purpose of the legislature could not be determined with the aid of the usual interpretive tools, the contra fiscum rule had to be applied (in the taxpayer’s favour). Includes a minority dissenting judgment by Nugent AJA, as he then was.*

2008 Tax court decision 01 December 2008: TC 12399. A joint will left the residue to an inter vivos

trust. This included a loan due by the trust to the testatrix. The executor never actually collected on the debt but awarded it as part of the trust’s claim against the estate. Was the debt discharged for no consideration, & did the trust acquire it for no consideration, thus triggering the infamous para 12(5) of the Eighth Schedule to the Income Tax Act? If so, the trust was liable to the CGT. The court decided the issue on the basis of the testatrix’s intention, which is odd, since the parties subject to para 12(5) were the deceased estate & the trust. Duncan McAllister, author of the Comprehensive Guide to Capital Gains Tax, points out that the estate, not the testatrix, was the creditor. The court’s decision in favour of the trust was thus based upon an incorrect understanding of para 12(5) within the context of the act as a whole. In order to avoid the CGT, the executor was required either to call up the loan & then make a distribution to the trust or formally apply set-off. Executors relying upon this judgment are cruising for a bruising, & face being personally called to account by beneficiaries. Moreover, in my view the executor’s L&D account did not comply with the requirements of GN R 473 GG 3425 of 24 March 1972, in that a claim against the trust was shown merely as an award to it. How strange that the first two CGT case reports both deal with para 12(5), whose purpose I still struggle to grasp.

2009 High Court case 04 September 2009: Executor Estate- Sorour v Scowby (AR232-08) [2009]

ZAKZPHC 58. Can your hope of an inheritance be attached? See the Monthly Notebook.

High Court case 04 September 2009. Executor Estate: Sorour v Scowby (AR232/08) [2009] ZAKZPHC 58. On the attachment of an inheritance. Covered in 204 TSH 2020.

2010 SCA case 29 March 2010: The abstract theory of property ownership, indelibly imbedded

in our law by Legator McKenna v Shea & others [2008] ZASCA 144; 2010 (1) SA



35 (SCA) (69 tsh 2008), gained further lustre in this case, Meintjes v Coetzer & Others (089/09) [2010] ZASCA 32. An attempt to justify the illegal transfer of fixed property on the ‘flimsy’ basis of an alleged waiver of her rights by the deceased owner was defeated by the claim of rei vindicatio. The abstract theory requires property not only to have been transferred but an intention on the part of the owner to transfer ownership, of which there was no sign in this case. In his invaluable Glossarium (sv rei vindicatio), Dr Theo Rood says that a vindicatory action involves the ‘recovery of property by the owner from any person in possession of it’.

SCA case 06 September 2010: Van der Merwe v Master of the High Court & another (605/09) [2010] ZASCA 99. Two friends decide to leave their respective estates to each other but the first-dying gets no further than sending an e-mail version of his intended will to the survivor. That is accepted as a valid will under s 2(3) of the Wills Act, thus overturning the deceased’s earlier will in favour of the SPCA.

High Court case 01 December 2010: Scoin Trading v Bernstein (29/10) [2010] ZASCA 160. Judgment of K Pillay AJA on mora interest in a deceased estate. Reported in 161 TSH 2016 & covered in 151 TSH 2015, 214 TSH 2021.

2012 SCA case 01 June 2012: Raubenheimer v Raubenheimer (560/2011) [2012] ZASCA 97.

Leach JA: It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign.

Oops! The draftsperson, ‘a Cape Town insurance broker & investment adviser’ & also the administrator of the estate, is identified. The truth be told, however, he seems to have had to deal with an exceptionally busy & difficult client. The will was improperly signed & witnessed, & the testator ‘had simply not had enough time to prepare’ a list of specific bequests meant to be incorporated by reference in the will. Nevertheless, it was taken to be the testator’s will under s 2(3) of the Wills Act, while the absence of the list did not render it void for vagueness. Finally, a ‘usufruct’ granted to the testator’s wife over the matrimonial home, although not being graced by the identification of any reciprocal bare dominium holder, was found instead to be a fideicommissum, complete with implied successor-owners. Lesser souls might have said: ‘Whatever this might be, it is decidedly not a valid will.’

High Court case 16 October 2012: Kanguatjivi v Shivoro Business and Estate Consultancy (A 206-2011) [2012] NAHCMD 95. Exact compliance with s 35(4) of the Administration of Estates Act (twenty-one-day period for lying open for inspection) is not required. Substantial compliance suffices. Thanks to the reader who sent this to me.

High court case 31 October 2012: Groeschke v Trustee for the Time Being of the Groeschke Family Trust and Others (44105/2011) [2012] ZAGPJHC 228. To me, a single-beneficiary trust is either a bewind or invalid (60, 61, 63 TSH 2008, 78 TSH 2009, 91 TSH 2010, 105 TSH 2011, 113 TSH 2012). As sole trustee, the sole beneficiary’s late father had the power to ‘change’ beneficiaries (a further ground of invalidity). After a fallout, he removed his son as a beneficiary, making himself the beneficiary instead (sole trustee & sole beneficiary—a further ground of invalidity). He gave himself blanket authority to appoint income beneficiaries (ditto). How did Bester AJ deal with this mess of pottage? By claiming that the SCA, in Potgieter, declared a trust to be a stipulatio alteri (it did no such thing; 106 TSH 2012), & finding that the son had never accepted benefits under the trust. If the trust was a bewind, I say, its property belonged to the son. As sole beneficiary, he in any event was protected by the nudum praeceptum maxim (78 TSH 2009 ff). If it was invalid, its property fell into the deceased’s estate.

SCA case 29 November 2013: Jakins v Baxter (178/13) [2013] ZASCA 190. The respondents in this case were executors who went to an awful lot of trouble to stop the applicant, the deceased’s widow, from benefiting under a life policy on her late husband’s life, & ended up paying the costs of her application. The couple’s ANC included the undertaking that she would benefit from the assignment to her of:



All benefits which will accrue as at the date of his death arising from his membership of his Tongaat-Hulett Pension Fund.

When the deceased retired he invested his one-third commutation of his pension benefits in an Old Mutual policy. The ‘life policy’, said the court, ‘clearly originated from the pension fund because it was funded from the fund’s proceeds’. What deep well of bitterness required three courts to decide such an obvious issue?

2014 SCA case 23 September 2014: The Minister of Justice and Constitutional Development v

X (196/13) [2014] ZASCA 129. Section 100 of the Administration of Estates Act (exemption from liability for acts or omissions in Master’s office) certainly attracts my interest & attention. This case dealt in part with a similar provision, s 42 of the National Prosecuting Authority Act. Per Fourie AJA:

I now deal with the appellant’s belated reliance on s 42 of the NPA Act. The section reads as follows:

Limitation of liability No person shall be liable in respect of anything done in good faith under this Act.

This defence was not raised in the appellant’s pleadings. Counsel for the appellant submitted that it was not necessary to do so, as it is a matter of law which has to be considered irrespective of whether or not it has been pleaded. In fact, counsel contended, it is the respondent who bears the onus of proving that the prosecutor had failed to act in good faith.

I do not agree. To my way of thinking, s 42 of the NPA Act seeks to introduce a ground of justification for conduct which is prima facie wrongful. Therefore, wrongful conduct that would otherwise give rise to delictual liability, may be justified and rendered lawful by virtue of the statutory immunity conferred in terms of s 42 of the NPA Act. It is a defence specifically directed at the wrongfulness element of delictual liability. It is trite that, in the case of a defence of this nature, the onus rests on the defendant (the appellant in this instance) to plead and prove the defence. See JR Midgley & JC van der Walt ‘Delict’ in Law of South Africa 2 ed Vol 8, Part I para 86, read with the authorities cited at note 1.

2015 High Court case 18 February 2015: Gounden and Another v Master of the High Court and

Others (3698/2014) [2015] ZAKZDHC 6. Acting, presumably, under s 35(9) of the Administration of Estates Act, the Master refused to accept the L&D account in an intestate deceased estate, on the basis of objections, to the effect that the spouse of an intestate heir, married in community of property, was also an intestate heir. On a procedural issue, Pillay J saw an application to seek a declarator under s 19(1)(a)(iii) of the Supreme Court Act as being, in the circumstances, an acceptable alternative to a PAJA review of an administrative decision by the Master. Gounden repudiated her contingent interest in the estate. The Master insisted that her repudiation required her spouse’s consent, or that of his executor. Pillay J seemingly misspoke when he said (footnote suppressed):

Turning to the authorities, all acknowledge that inheritance in an intestate estate vests on the death of the deceased.

What vests, rather, is a contingent interest; a personal right against the executor. In De Leef Family Trust & Another v CIR 1993(3) SA 345 the distinction made between dies cedit & dies venit superficially overlooks the contingent nature of a beneficiary’s interest but was in fact likened to a shareholder’s right to participate at some future time in a company’ s surplus assets, which is blatantly contingent. (I am hoping in a future issue to cover the case law on the transmissibility of such contingent interests.) Read carefully, Pillay J’s judgment coincides fully with the views on this issue expressed in this newsletter:

The person having the most direct interest in this matter is the first applicant. It is not for the executors in any estate to make such election. The first applicant acquires on dies cedit a right to claim her inheritance. It is that right that vests in her on the death of Somnaidoo. It is not the right to the inheritance itself. The inheritance would only vest in her joint estate with the deceased after the accounts have lain for inspection



without objection. The accounts have not been approved by the Master. Furthermore, creditors have still to lay their claims and, until dies venit occurs, the first applicant was free to dispose of her inheritance as she pleased.

Read that passage in conjunction with what Van der Heever JA said in the famous case of Crookes, NO and Another v Watson and Others 1956 (1) SA 277 (A):

The oft-repeated saying that a legatee does not acquire a legacy unless he accepts it, misplaces the stress; it would be more correct to say that he acquires a right to the subject-matter of the bequest unless he repudiates it.

Difficult to absorb at once though it might be, this is a mainstream judgment, & the Master’s improper interference was rightly rebuffed.

SCA case 25 March 2015: Nedbank Ltd v Steyn (20085/2014) [2015] ZASCA 30. About a hoary point of law under the Administration of Estates Act, supposedly settled in Samsodien (see my The Administration of Estates Act—Case Law), although not according to the trial court, whether a creditor may institute an action against a deceased estate for a debt due by the deceased. Per Brand JA:

This brings me to the judgment of Van Oosten J in Nedbank Ltd v Samsodien NO 2012 (5) SA 642 (GSJ), which Mabuse J refused to follow because, in his view, it had been wrongly decided. Samsodien was also the executrix in a deceased estate. When Nedbank instituted action against the estate by way of summons, she raised the special plea that the procedure adopted by Nedbank was incompetent in that it should have followed the claims procedure laid down in the Act instead. On the authority of Estate Stanford, Davids and Benade, Van Oosten J held, however, that this claims procedure does not deprive a creditor of its common law right to enforce a claim against the deceased by way of action against his or her estate. Hence he held the special plea to be unfounded.

….But be that as it may, in my view Mabuse J’s analysis of the three cases misses the ratio decidendi of all three. That ratio decidendi, as I see it, is in short that the procedure laid down in the Act does not preclude the plaintiff from instituting an action in common law against the estate. Thus understood, all three judgments do indeed lend direct support to the judgment of Van Oosten J in Samsodien NO.

…. Finally, in the light of the legislative history there is in my view another consideration

why the ultimate conclusion by Mabuse J cannot be sustained. It is this. We know that prior to the Act (ie Act 66 of 1965) there was a line of decisions in which the courts attributed a particular meaning to the pertinent provisions of the old Act (ie Act 24 of 1913). According to established authority, the legislature is presumed to have known of these decisions. When it subsequently introduced virtually the same provisions in the new Act, it must be taken to have endorsed the meaning attributed to those provisions by the courts.

2016 SCA case 01 June 2016: Du Toit NO v Errol Thomas NO (635/15) [2016] ZASCA 94. This

judgment ought to serve as a lesson to all the so-called legal & accounting professionals performing to an unacceptable standard. Per Victor AJA:

The appellant accepted that the minor child was entitled to maintenance and that in law the estate had an obligation to maintain her. That notwithstanding, he contended that the second respondent had to proceed in terms of the Administration of Estates Act and not the Maintenance Act. Thus although not disputing the validity of the claim, the attitude of the appellant was that the second respondent had to be burdened with a high court application instead of the more expeditious remedy provided by the Maintenance Act. In adopting such an unduly technical stance the appellant has put both the second respondent and the estate to the cost of this litigation. In this court a concession was made on behalf of the executor that if the High Court had ordered the same amount of maintenance as the maintenance court he would have paid it.

Given the unconscionable stance adopted by the appellant, there can be no justification for the deceased estate to bear the costs of this appeal. The appeal was pursued with no regard to the child’ best interests or its prospects of success.

The executor was ordered to pay the surviving spouse’s costs of the appeal de bonis propriis (out of his own pocket), on the attorney-and-client (punitive) scale.

High Court case 29 June 2016: Penwill NO and Another v Penwill and Others (61782/2012)



[2016] ZAGPPHC 473. About the validity of wills for purposes of the Administration of Estates Act. Per Van Oosten J (who went on to cite a song):

Prophetically, I see this ugly difference of opinion, and the waste of assets, continuing after I have departed this earth. This continuing disagreement without reason is a struggle without victors, only victims.

Peter D'Arcy Herrman, Chartered Accountant (SA), Tzaneen, 26 January 2007. And, indeed so it has come to pass: almost 10 years hence—Peter D'Arcy-Herrman

in the afterlife and the Penwill brothers head locked in a titanic legal battle. The trust involved in the matter sounds invalid to me, including as it does a

power to appoint undesignated beneficiaries. As usual in such matters, the point did not arise. The wills concerned were declared null & void, & a copy of the judgment was ordered to be forwarded to the General Council of the Bar of SA. Fat lot of good that would do, if the Great Geach VAT scandal is anything to go by (116, 117 TSH 2012).

2017 High Court case 01 February 2017: Van Staden NO v Nel NO and Another (11114/2015) [2017]

ZAGPPHC 26. Another family & professional bust-up over a trust. Did the deceased beneficiary make a loan or a donation to the trust? If a loan, the trust was insolvent. SARS please note: the trust was found not to be insolvent.

High Court case 14 September 2017: Moosa NO and Others v Harnaker and Others (400/17) [2017] ZAWCHC 97. An extract from the judgment of Le Grange J:

In the result the following order is made: (a) In terms of section 172(1)(a) of the Constitution, section 2C(1) of the Wills Act is declared inconsistent with the Constitution and invalid only: (i) to the extent that, for the purposes of the operation of section 2C(1), the term

‘surviving spouse’ therein does not include a husband or wife in a marriage that was solemnized under the tenets of Islam (Shari’ah); and

(ii) to the extent that, for the purposes of the operation of section 2C(1), the term ‘surviving spouse’ therein does not include multiple female spouses who were married to a deceased testator under polygynous Muslim marriages.

(b) In terms of section 172(1)(b) of the Constitution, it is just and equitable to read section 2C(1) of the Wills Act as including the underlined (words):

If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse. For purposes of this sub-section, a ‘surviving spouse’ includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnized under the religion of Islam.

2018 High Court case 16 January 2018: Oliphant NO v Oliphant and Others (48/2017) [2018] ZANCHC

3. The appellant really screwed up her approach to this case about an intestate estate, which she should have won, hands down. Pakati J better understood how a deceased estate works. See the Monthly Notebook.

High Court case 23 January 2018: Master of the High Court, Eastern Cape Division, Mthatha v Linyana NO and Another (468/2013) [2018] ZAECMHC 4. The Master wanted this attorney jailed for contempt of court, after the attorney’s employees were served with court orders, over the (mal?)administration of a deceased estate, but he denied personal service or knowledge of the orders. The case went well for him, ending with a mere referral to the relevant law society.§

High Court case 08 February 2018: Smit NO v Firstrand Bank Limited and Others In re: Firstrand Bank Limited formerly known as Firstrand Bank of South Africa Limited v Abrahams NO (23395/2016) [2018] ZAWCHC 13. Per Meer J:

The Applicant, an attorney who acts for himself, is the current appointee as Master’s Representative to the Estate. He is also interested in purchasing the property. The Applicant contends that the default judgment was erroneously sought and granted, given that at the time of the institution of the action in the main application, MS Abrahams, the Defendant therein, had resigned as the Master’s Representative to the Estate.

It turned out that the Master’s office follows s 54 of the Administration of Estates Act in dealing with the resignation of a Master’s representative



appointed under s 18(3). The representative is released from his office in a registered letter from the Master, just as an executor is released from office under s 54. Thanks to his lack of bona fides, the attorney not only lost the case but was hit personally with a costs order.

High Court case 08 March 2018: Keyter NO v Keevy and Others (CA311/2017) [2018] ZAECGHC 19. The deceased left a usufruct over much of his estate to his spouse, & his farming operations to a testamentary trust. The trustees & the usufructuary then let the farms, implements & livestock, under a sheep lease, to Keevy. The lease terminated on the death of the usufructuary. Keevy failed to honour the terms of the sheep lease, & the livestock ended up in the possession of the deceased usufructuary’s executor. Under a sheep lease, ownership passes to the ‘lessee’. A claim for delivery is not a rei vindicatio but a ‘debt’ under the Prescription Act, with the result that the appellant’s claim had prescribed.

SCA case 28 March 2018: CSARS v The Executors of Estate Late Sidney Ellerine (142/2017) [2018] ZASCA 39. Congratulations are due to SARS for defeating a modern reprise of an ancient ruse to avoid estate duty, nowadays also relevant to the exit CGT arising upon death. An extract from the judgment of D Davis AJA, who magisterially analysed the relevant documents:

The essence of appellant’s case is set out in its Rule 10 Statement as follows: ‘The nominal value of the 112 000 preference shares does not reflect the market value of the shares, as the voting rights attached to the shares entitled the deceased to convert his preference shares into ordinary shares at any stage after 9 May 2006, this by virtue of article 7.1.10 of the Articles adopted on 09 May 2006 by the Company, and notwithstanding the provisions of Special Condition 5.8.’

And the final order, as amended by the SCA: ‘The deceased was entitled, on the date of his death, to convert the preference shares to ordinary shares and the preference shares must be valued, for the purposes of paragraph 40 read with paragraph 31(3) of the Eighth Schedule to the Income Tax Act, on this basis.’

SCA case 28 March 2018: CSARS v The Executors of Estate Late Sidney Ellerine (142/2017) [2018] ZASCA 39. Now picked up in the SARS ‘What’s New’ page.*

High Court case 15 May 2018: Tugh NO and Another v Rajbansi and Others (9220/2015) [2018] ZAKZDHC 12. A trustee removed by order of court. Per Koen J:

The First Respondent finds herself in the invidious position of laying claims to the shares as executrix whilst in the proper discharge of her fiduciary duties as trustee she might also be required to pursue those shares on behalf of and for the benefit of the Trust directly. That places her in a position where she has to choose sides. Whether she is correct in having chosen the side of the deceased estate is not the issue. By placing herself in a position where she has to choose sides results in a situation where she cannot remain impartial and non-partisan.

No proof of mala fides or dishonesty is required. Her positions as executrix and as trustee in relation to the transfer of the shares simply involve two positions which are mutually destructive, with conflicting duties.

SCA case 17 May 2018: Osborne v Cockin NO & Others (549/2017) [2018] ZASCA 58. Someone, now deceased, by his own hand, owes you money. Fraud is involved. Would you try to sequestrate his trust, on the basis that it was a sham? Hope you said No. Per Lewis JA:

As the court a quo suggested, the proper procedure that should have been followed by Osborne was to make a claim against the trustees of the insolvent deceased estate, and to insist on enquiries or an investigation in terms of ss 64, 65 and 66 of the Insolvency Act. Proper investigation might establish which of his assets, if any, were on trust property, and whether the trustees of the Cockin Trust were liable to return any a cattle or pay damages.

In the circumstances, the appeal must be dismissed. Osborne did not establish that the Cockin Trust was his debtor and was insolvent or had committed any act of insolvency.

The judge in the lower court was Alkema J, who relied in part on his (by me celebrated) judgment in RP v DP and Others 2014 (6) SA 243 (ECP) (143, 144 TSH 2015, 159, 165 TSH 2016) (I’m still looking for a copyright-free copy), only to be rapped over the knuckles by Lewis JA.

SCA case 31 May 2018: Standard Bank v July (525/2017) [2018] ZASCA 85: A beneficiary of a deceased estate may, under the Beningfield exception, claim assets from the person in possession where the executor of the estate has died and where the executor had previously sold the assets unlawfully before his death.



Per Lewis JA: This court followed the decision of the Privy Council in Beningfield v Baxter (1886) 12 AC 167 (PC), an appeal from the Natal Supreme Court, in which an exception to the general rule that only an executor of an estate has locus standi in relation to estate assets and transactions, was recognized. The exception has come to be known in South Africa as the ‘Beningfield exception’ or the ‘Beningfield principle’.…

In the circumstances, it was unnecessary for the respondents first to ask the Master to appoint an executor to Eunice’s estate.

SCA case 31 May 2018: Naidoo v Discovery Life Limited & others (202/2017) ZASCA 88: Contract law—risk-only policy containing beneficiary clause—stipulatio alteri—such policy cannot be an asset in the estate of the policyholder and of joint estate from marriage in community of property—such a policy not an insurance policy in terms of s 15(2)(c) of the Matrimonial Property Act 88 of 1984.

Concourt case 14 June 2018: Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16. Confirming the constitutional invalidity of s 18 of the Criminal Procedure Act, & a read-in ordered:

In conclusion, it is clear from the preceding analysis that there is no rational basis for the right to prosecute to lapse after 20 years in respect of other forms of sexual offences, and not for rape or compelled rape. Sexual offences may differ in form but the psychological harm they all produce may be similar.§

High Court case 18 September 2018: Levinson NO v Master of the High Court (Gauteng Division) and Others (2017/4324) [2018] ZAGPJHC 503. A case under s 95 of the Administration of Estates Act. The Master’s decision to remove an executrix & appoint a replacement upheld. The executrix removed from her office under 54(1)(a)(v).§

High Court case 20 September 2018: G S and Another v Vardakos NO and Others (32795/2017) [2018] ZAGPJHC 541. An executor compelled under s 28 of the Administration of Estates Act to supply full details of the bank accounts opened in the name of the deceased estate.§

High Court case 20 September 2018: Pretorius NO v Jones and Another (55701/17) [2018] ZAGPPHC 831. An executrix hires a CA(SA) to administer the estate on her behalf. When she dies, he continues to act! He pays himself fees (totalling R1 148 828,13) & makes distributions—before approval of the accounts! He was made to disgorge the fees.

High Court case 25 October 2018: Rockman and Another v Padayachee and Others (3518/2017) [2018] ZAECPEHC 60. A joint will found to create a fideicommissum, rendering the subsequent will of the survivor invalid, fortunately, as it turned out, for the first respondent. Per Revelas J:

The first respondent submitted that the costs of the application should be paid from the deceased estate. The conduct of the first respondent in making a false statement in an attempt to mislead the Master and the other beneficiaries under the first will ought to impact on the costs order made herein. It would be most unfair to burden the estate with costs incurred as a result of the first respondent’s misconduct.§

SCA case 11 December 2018: The Law Society of the Northern Provinces v Morobadi (1151/2017) [2018] ZASCA 185. I am currently collecting tales of misconduct by executors. To take an executor’s fee prematurely is commonplace. To charge a contingency fee & take a ‘loan’ from an estate is pure genius.§

High Court case 12 December 2018: Furman NO and Others v Hattingh (8914/2017) [2018] ZAGPJHC 649. An insured buy-&-sell agreement leads to a curious addendum (the deceased was a party), found to be a simulation & therefore pro non scripto. Throw in a criminal violation of s 9 of the Administration of Estates Act, & some serious money changes hands, benefiting the estate.§

High Court case 12 December 2018: Furman NO and Others v Hattingh (8914/2017) [2018] ZAGPJHC 649 (190 TSH 2019). About an insured buy-&-sell agreement. Now included in the TSH Database.

2019 High Court case 18 February 2019: M J v Master of the High Court and Others (15699/2017)

[2019] ZAWCHC 8. An unsuccesful review of the Master’s decision on the removal & replacement of the excutor in a deceased estate.§

High Court case 29 March 2019: Britz NO v Strydom and Another (2849/2018) [2019] ZAECPEHC 17. An executrix secures an eviction order, freeing-up estate property.



Beyleveld AJ includes in the following passage an assertion—on ownership by the executor—I have not come across in the case law (footnotes suppressed):

What is however uncontentious, is the fact that a beneficiary never becomes the owner of any inherited asset upon the death of the deceased. The executor of a deceased estate is the owner of the assets during the period of the administration of such estate. An executor takes into custody and control all the property in the estate.§

High Court case 29 March 2019: Britz NO v Strydom and Another (2849/2018) [2019] ZAECPEHC 17 (193 TSH 2019). I’ve changed my mind. I’m adding this case—on an insolvent estate under s 34 of the Administration of Estates Act—to the Tax Shock, Horror Database after all. I see that the obscure Segal and Another v Segal and Others 1976 (2) SA 531 (C) is cited, in part for a careless reference to the ‘vesting’ of estate property in the executor, but there is no citation to be found there supporting the idea. What vests in the executor is control, not ownership, of the estate property. (Read on.)

High Court case 30 April 2019: De Wet NO v Barkhuizen and Others (2330/2018) [2019] ZAECPEHC 25. Section 71(1) of the Administration of Estates Act prohibits anyone administering property as tutor or curator without letters of authority. As we know from trust law & the law of deceased estates, in the absence of the requisite LOA, any act of a purported trustee or executor is invalid. The same rule applies to tutors & curators. The issue is dealt with in Bouwer NO Saambou Bank Bpk 1993 (4) SA 492 (T) &, especially, Shea v Legator McKenna and Others [2008] 1 All SA 491 (D). S Rugunanan AJ awarded part of the costs, de bonis propriis on an attorney-client scale, against the applicant, an attorney, & his attorney. (The appeal in Shea ought to be famous; see 69 TSH 2008.)

High Court case 20 May 2019: Dryden v Harrison and Others Western Cape Division, Cape Town (11912/17). Unreported, even by SAFLII. An email found not to be a will under s 2(3) of the Wills Act. Per Nuku J:

Whilst he may have intended to ultimately make the applicant a beneficiary of his estate, he never got to drafting or executing a document which he intended to be his Last Will and Testament. The disputed Will, in my view, is nothing more than an email in which he was assuring the applicant that he will make her a beneficiary of his estate.

High Court case 05 June 2019: Bouwer NO and Another v Smit NO and Others (59423/2015) [2019] ZAGPPHC 264. Here’s a first—two documents competing to be the trust deed! A most complex fight about removing trustees, most of whom wanted out anyway. They got their wish, while another survived, albeit to be joined by two independent trustees appointed by the Master, all of them directed to fulfil the parties’ desire to wind the thing up. It sounds like the beneficiaries, at least as a class, were vested beneficiaries. Oh, & one other thing:

The will also provided that after Anna Viljoen’s death [with a lifetime usufruct], the usufruct would devolve upon the children for a period of one year, and should a beneficiary pass away during the currency of the usufruct, his/her children would step into the shoes of that beneficiary.

Sound familiar? This very month someone asked me for a copy of ‘A famous estate duty scheme: my latest view & some bad news’ 71 TSH 2009, except that, in the event, there was no bad news.

High Court case 19 August 2019: Valashiya NO v Moroesi and Others (13985/2017) [2019] ZAGPJHC 292. The transfer of fixed property out of a deceased estate—without the permission of the Master & before confirmation of the accounts—set aside.

High Court case 10 September 2019: FNB Fiduciary (Pty) Ltd NO v Anappa and Others (D2913/2018) [2019] ZAKZDHC 17. One of the most extraordinary judgments I have ever seen, by Henriques J. The deceased dies, leaving a will appointing FNB as executor. But, by the time FNB discovered he was dead, the Master had appointed his surviving wife, to whom he was married in community of property, as executrix, under the bona fide impression of both of them that there was no current will. With permission, she transferred the full interest in a CC to herself, selling it Anappa, who quickly onsold it, at a large profit, to the Rajaruthnams. Applying every legal principle in the book, including Oudekraal, Henriques J found that the executrix’s appointment was valid, that the sale to Anappa was valid, & that the Rajaruthnams were bona fide purchasers. FNB’s eventual appointment as executor came too late to make any difference.

SCA case 23 September 2019: Grobler v Master of the High Court & others (645/2018) [2019] ZASCA 119. Unsigned draft of a will, not even written by the deceased,



found, unsurprisingly, not to be valid will. Sadly, the will he had signed was executed before he had even met his second wife.

SCA case 27 September 2019: Jacobs and another v Baumann NO and others (239/2018) [2019] ZASCA 128. A fascinating matter concerning an oral agreement of loan from offshore hit by the SARB’s debt-rescheduling arrangements (the debt standstill). It consequently had to be made to a CC, which failed to pay. The debt was found to be enforceable against the individual debtors. Includes discussion on the issue of the validity of actions prohibited by statute. Beneficiaries in a deceased estate brusquely reminded that they enjoy no locus standi, as opposed to the executor.§

SCA case 01 October 2019: Goosen v Wiehahn (761/2018) [2019] ZASCA 137. A beautiful judgment by Ponnan JA on personal rights arising under a will, it having been argued that the will created an option in violation of the Alienation of Land Act:

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’. The testamentary disposition was the ‘fons et origo’ of the right. The right is not a pactum de contrahendo (an agreement to make a contract), ‘as it has been regulated through a testamentary disposition’. 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’.

I have suppressed the footnotes but the cases (all but one on tax) cited are: Executor, Estate Higginson v The Commissioner for Inland Revenue 1931 WLD 140 at 143; Commissioner for Inland Revenue v Estate Kirsch and Others 1951 (3) SA 496 (A) at 506D–507A; Van Deventer v Ivory Sun Trading 77 (Pty) Ltd [2014] ZASCA 169; 2015 3 SA 532 (SCA) para 17; Estate Roadknight and Another v Secretary for Inland Revenue 1973 (2) SA 339 (D) at 341F–G.

SCA case 22 November 2019: Murray and Others NNO v African Global Holdings (Pty) Ltd and Others (306/2019) [2019] ZASCA 152. Includes a finding on s 2(1)(a)(ii) of the Administration of Estates Act, on the appointment of the Master of the High Court. Per Wallis JA:

Section 2(1)(a)(ii) does not give the Minister the power to appoint a Master for a portion of the area of jurisdiction of a High Court. Nor is the Minister empowered to limit a Master’s jurisdiction in any way or to prescribe which matters will be dealt with in which Master’s office where there is concurrent jurisdiction. As a matter of fact there is no indication that the Minister has tried to do so. The assumption underlying Holdings’ argument was that the areas of jurisdiction of the Master in Johannesburg and that of the Master in Pretoria do not overlap. That was incorrect because the area of jurisdiction of the Master in Pretoria includes the entire area of jurisdiction of the Master in Johannesburg, in the same way that the former Transvaal Provincial Division exercised concurrent jurisdiction over the entire area of jurisdiction of the former Witwatersrand Local Division. As then, so now, it is open to parties requiring the assistance of the Master to use the office of either where their areas of jurisdiction overlap. The objection to the appointment of the liquidators by the Deputy Master, Pretoria was therefore without merit.

2020 High Court case 20 January 2020: Edwards v Dobrowsky NO and Another (1257/2019) [2020]

ZAECGHC 4. A claimant in a deceased estate successfully applies for the Master’s rejection of his claim to be reviewed & set aside. The Master & the executor seem to have misunderstood how a fideicommissum works when the fiduciary enjoys a power to dispose of the entailed property & reinvest. Said Lowe J, Roberson concurring (footnote suppressed):

Upon the death of Mrs Dobrowsky Applicant as fideicommissary was accorded a rei vindicatio for the recovery of the property from third parties and in this matter was afforded a claim in the estate for the sum of R360 000,00.

High Court case 24 January 2020: Piagalis v Aphane NO and Others (40377/2018) [2020] ZAGPJHC 6. A clearly successful father dies intestate. One of three brothers is appointed executor by the Master. The applicant brother contests that appointment in an earlier matter, & the court orders the Master to think again.



Guess what? The Master reappoints the same brother! Astonishingly, the Master is unrepresented at this review before Modiba J, under s 95 of the Administration of Estates Act & s 6 of PAJA:

[T]he Master’s decision to appoint Georgios by election violates the principle of legality in that, by deciding Georgios re-appointment by election, the Master exceeded his powers under section 19 of the Act.

[T]he Master’s decision to re-appoint Georgios is based on a factual error in that he fails to take into account the acrimony between the Piagalis brothers and its bearing on the administration of the estate given that the deceased estate assets mainly comprises member’s interests in Close Corporations whose business is managed by Elefterios, but applied irrelevant considerations under the circumstances, namely the fact that Georgios is the majority nominee and for incorrectly, arbitrarily and capriciously excluding Mr Brasg as a potential executor[.]

The Master regularly interferes when he should not & refuses to assist when he so readily could. As this case shows, he needs to be challenged, often.

High Court case 11 February 2020: Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 6. A person, perhaps an attorney, fatally debarred from being an executor in the deceased’s estate, by reason of having witnessed the will, mounts an incredible but utterly hopeless battle to retain his status as such, seemingly on account of the imaginary benefits of the office.

High Court case 25 February 2020: Marshall v Baker NO and Others (9510/2019) [2020] ZAWCHC 13. Just before a very serious operation, the deceased draws & signs a document referring to his property in a schematic way. He never recovers from the operation, leaving a valid will. His life partner unsuccessfully tries to have the schematic document recognized as a will, under s 2(3) of the Wills Act, fails, & ends up saddled with a cost order. Per Cloete J:

Accordingly, an examination of the document itself and of the document in the context of the surrounding circumstances, leads me to conclude that it was a recordal of the deceased’s testamentary intentions, and not what he intended to be his will for purposes of s 2(3). It follows that s 2A(c) need not be considered. It also follows that the application must fail.

SCA case 25 March 2020: Marais NO and Another v Maposa and Others (642/2018) [2020] ZASCA 23. This couple were married in community of property. The husband formed a relationship with another woman, with whom he purported to enter into an invalid customary marriage, & with whom he had two children. At a time when his mental health was impaired, he purported to donate the bulk of the couple’s joint estate to the other woman, but without his wife’s consent, explicit or implicit. As Plasket JA put it, ‘On Ms Ledwaba’s own version, she does not get out of the starting blocks.’

High Court case 28 April 2020: J W v Williams-Ashman NO and Others (16108/19) [2020] ZAWCHC 27. The second case, ever (19 TSH 2019) on s 2B of the Wills Act (three-month cooling-off period for divorced spouses). Is it constitutional? A magisterial judgment by Sher J, including this passage, based upon De Leef:

However, an heir or legatee of an unconditional bequest in terms of a will obtains a vested right on the death of a testator which becomes enforceable by way of a claim at the time when the liquidation and distribution account is confirmed.

Tragically, the ex-wife, who had, just before their marriage, left everything to her husband (to be), committed suicide within three months of their divorce (shortly after unsuccessfully asking to move to his farm). Under s 2B, her estate was rendered intestate, hence the ex-husband’s attempt to render s 2B nugatory. The ratio:

In the result, in my view for the reasons set out above s 2B serves a legitimate and compelling social purpose and the deprivation which it affects when it applies is not arbitrary in terms of s 25(1), and there is sufficient reason for it. It is also not procedurally unfair. In addition, the terms of s 2B do not constitute a limitation of the applicant’s right of access to a Court, in breach of s 34. Consequently, the application falls to be dismissed.

I look forward to making ample reliance upon this splendid judgment. High Court case 12 May 2020: Mlunguza and Another v Master of the High Court and Another

(21755/2018) [2020] ZAWCHC 34. An application to appeal against the judgment of Roger J in Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 6 (203 TSH 2020). (I see from another recent judgment that there exists a widespread belief that someone appointed as executor gains personal access to the estate property. I now regret not



noting the judgment but perhaps it will come up next month.) The application was dismissed, with a punitive costs order, & the way opened for the second applicant to be made to contribute to the costs. At last it is revealed that the first applicant was an attorney but he was struck off the roll (subject, perhaps, to a pending appeal). The fact remained that, as a witness to the will, he could not serve as executor, under s 4A(1) of the Wills Act. Per Roger J:

I do not consider, in the circumstances, that there are any reasonable prospect of another court finding that Mr Mlunguza’s removal as an executor should have been set aside (ie that he should in effect have been reinstated as the executor).

High Court case 19 May 2020: Setati v Master of the High Court and Another (3343/2019) [2020] ZALMPPHC 50. I found it again (206 TSH 2020, on the Mlunguza matter)! This is the case in which Muller J said:

The expression ‘first come, first serve’ has acquired new meaning when we are dealing with the appointment of executors in deceased estates. There are in many instances the erroneous perception that the person who is appointed first as executor will be entitled to the proceeds of the estate.

He concluded his judgment thusly: In this Province, most of the disputes in relation to the appointment of executors and matters of succession originate from disputes over the validity of customary marriages. The present case is no exception. The Master should have acted in terms of section 18(1), to resolve which person(s) should be appointed soon after the applications were filed. The public is entitled to rely on the Master to scrupulously observe the provisions in Act 66 of 1965. It is by acting fairly within the confines of the law that the confidence of the public is fostered and maintained.§

High Court case 30June 2020: Kriel v Master of the High Court and Others (22759/12) [2020] ZAWCHC 57. Two impugned wills created in ‘secretive’ circumstances found to be invalid, on account of a lack of testamentary capacity, leaving the original will standing, in the applicant’s favour.§

SCA case 06 July 2020: Van Zyl NO v Getz NO (548-19) [2020] ZASCA 84. The appeal of the curatrix ad litem dismissed, & the Registrar directed to forward a copy of the judgment to the Judicial Service Commission to investigate the conduct of Acting Judge Kose. The underlying question whether the estate of a deceased grandparent has a duty to support a grandchild seems pretty frivolous when the ability of the child’s mother to do so was untested. In the course of a hugely informative judgment on the duty of support, which he refused to develop, Zondo JA said:

In other words, the structure of the common-law rule as it currently exists, recognizes the special role and responsibility that parents have in raising children in South African law. It also recognizes that the role and responsibilities which attach first to the relationship between parents and their child may only be passed on to other family members, and to the larger community, where parents are unable to fulfil them.

High Court case 18 August 2020: Pearce and Another v Pearce NO and Another (D12149/2018) [2020] ZAKZDHC 33. Before Mngadi J. The applicants fail, under the Plascon-Evans rule (see 190 TSH 2019), in their attempt, under s 54(1)(a)(v) of the Administration of Estates Act, to remove Celeste Arlene Pearce, the executrix of the estate of the late Owen Christopher Pearce. Married in community of property, she was the sole beneficiary & executrix under her husband’s will.

High Court case 28 September 2020: Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111. It doesn’t get more controversial than this decision, on the relationship between the applicant & the deceased. In the face of the ‘surprise’ of a settlement, Magona AJ went on to make constitutional changes to s 1(1) of the Intestate Succession Act, having found the couple ‘were permanent life partners who had undertaken reciprocal duties of support to one another’. The minister of justice & constitutional development was saddled with the costs of the action. Someone, surely, will appeal. (Full disclosure: to say that my predictions of appeals have enjoyed a poor record is to be hopelessly optimistic.) A radical outcome on a matter that was moot.

SCA case 29 September 2020: Jones v Pretorius NO (281/2019) [2020] ZASCA 113. A successful application for condonation, by both parties. The judgment of Van der Merwe JA is full of interesting stuff, to be aired in a future issue. From the summary:

Deceased estate—agent appointed to administer estate on behalf of executor—



agency terminated upon death of executor—subsequent payments by agent from estate funds to himself—not recoverable under s 50(b) of Administration of Estates Act 66 of 1965—remedy under s 50(b) not limited to condictio indebiti—payments constituted unlawful appropriations of estate funds—recoverable by new executor by reason of powers and duties attached to office of executor.

Many accountants looking for fresh revenue sources in hard times should not for a minute think that the administration of estates offers easy money.

SCA case 05 October 2020: Hattingh v Furman and Others NNO (388/2019) [2020] ZASCA 123. No fewer than three judgments delivered in this battle over a buy-&-sell policy (see 190 TSH 2019), with four judges dismissing the application for leave to appeal. Per Van der Merwe:

In these circumstances the real purpose and effect of the Addendum was not to divest Mr Hattingh of his member’s interest. It was to hide it from Ms Blackburn’s executor and heirs by having Mr Weinbren hold it for Mr Hattingh until the coast had cleared, as it were. That the parties performed in terms of the Addendum is of no moment: the charade of performance was meant to give credence to their simulation (see CSARS v NWK supra para 55). And the re-transfer thereof would be a mere formality. In sum, Mr Weinbren and Mr Hattingh did not intend the legal effect that the Addendum conveyed to the outside world to operate inter partes. As between them, 25 per cent of the members’ interest belonged to Mr Hattingh.

See the Monthly Notebook.§ High Court case 12 October 2020 CSARS v Executor of Estate Late Ndlovu (A395-2016) [2020]

ZAGPPHC. As cited by SARS, the case being otherwise unreported. While successfully applying for condonation of its late service & filing of its heads of argument (thanks only to the co-operation of SARS), the taxpayer lost this case, with costs, SARS’s appeal against the decision of the tax court being upheld. The deceased was a director of the Nedbank Group, who had been sadly misinformed about the taxability of share-incentive shares. The tax court had allowed the taxpayer to add a new ground during the trial, to the prejudice of SARS. And, after SARS had reduced the additional tax from 100% to 10%, it had reduced it further, to 0%. Pretorius J was having none of that. Besides:

Should we be wrong in this finding, it is clear that the taxpayer had not shown any reasonable grounds for his failure to declare the amount of gain in his tax return and has not succeeded in convincing the Court that the interest should be waived. The appeal will therefor also succeed on this ground. The respondent has to pay the interest in terms of section 89quat(2).

There are issues here now covered in TAW. See 44 TAW 2020. I trust that SARS is investigating Nedbank’s PAYE affairs.*

High Court case 12 October 2020: Govindasamy and Another v Pillay and Others (D7270/2015) [2020] ZAKZDHC 49. A conditional prohibition in a will against the selling of an immovable property set aside & the property ordered, again, conditionally, to be sold. Per Chetty J:

As alluded to earlier, the animosity between the heirs has reached the point where they cannot live together on the same property, and they cannot agree on the value of the property, in the event of one heir wishing, as the first respondent does, to buy the half share of the first applicant. The strife that presently exists could not have been foreseen by the testator, and in the result I am satisfied that this court, in the exercise of its discretion, is entitled to vary the provisions of the will of the late Soondrarajoo Govindasamy to permit for the sale of property, despite such sale not being by mutual consent of the heirs.

The facts & circumstances are so familiar they might apply to a thousand families.§

High Court case 16 October 2020: Levinson NO v Master of the High Court and Others (A5032/2019) [2020] ZAGPJHC 254. An appeal from Levinson NO v Master of the High Court (Gauteng Division) and Others (2017/4324) [2018] ZAGPJHC 503 (18 September 2018) (see 187 TSH 2018). With no difference in outcome. Said Dippenaar J, in a beautifully & meticulously presented judgment:

In short, the court a quo found…that the appellant was dilatory in the finalization of the estate and failed to execute her duties as executor timeously and that the Master was entitled to remove her in terms of s 54(1)(b)(v) of the Act. Implicit in this finding is that the Master’s decision to remove the appellant was not unlawful. As dealt with below, considering the facts, this conclusion of the court a quo cannot be faulted and it did not misdirect itself on this issue.

On the authority of Mlunguza and Another v The Master of the High Court and



Another (21755/2018) [2020] ZAWCHC 6 (11 February 2020) paras 57–58 (see 203 TSH 2020), she said (footnote suppressed):

The Master’s decision to remove the appellant as executor stands until set aside. At the time the second respondent was appointed as executor, the removal of the appellant had not been set aside and, in terms of this judgment, will not be set aside. The evidence established that the jurisdictional prerequisite for appointing the second respondent, being where a sole executor ceases for any reason to be an executor as envisaged by s 18(1)(e) of the Act.

High Court case 22 October 2020: Segal and Another v Master of the High Court Cape Town and Others (145/19) [2020] ZAWCHC 144. Before Lekhuleni AJ. An unwitnessed will condoned under s 2(1)(a)(ii) & (iii) of the Wills Act. Let’s hope that this extraordinary clause of the impugned will was merely pro non scripto:

I direct that my executor must make it absolutely clear to all the above beneficiaries referred to in clause 7 and 8 above that in the event of any of them intending to redistribute their share of the inheritance, or a portion thereof, as set out above in clause 7 and 8 to any of my children, or their family, as well as my sister or any of her family then in that event I DIRECT that their share of my estate shall be forfeited and that such share shall BE DONATED to a CHARITY in the sole discretion of my executor. All heirs AND Legatees shall be required to give a signed undertaking to my executor that they accept their bequest SUBJECT TO THIS CONDITION.

High Court case 16 November 2020: Wilsnach NO v Motaung and Others (22553/2019) [2020] ZAGPPHC 756. Heard by Kollapen J (footnote suppressed):

This application, in the narrow sense, concerns the interpretation to be given to the term ‘parent’ as used in section 1(1)(d) of the Intestate Succession Act (ISA). However, in interpreting the term ‘parent’ the matter triggers an important discussion as to the meaning and content of what is understood by the idea of parenting and parenthood. Is the definition of a parent for the purpose of the ISA simply a matter of blood and biology or is its determination a matter which in each case is to be arrived at by a consideration of the what parenting, parenthood and being a parent has come to mean in our law, regard being had to the values and objectives of the constitutional dispensation which enjoys supremacy in our legal regime.

The content of the judgment must await a future issue. High Court case 19 November 2020: Bagnall NO and Others v Acker NO and Others (A01/2019;

A276/2019) [2020] ZAWCHC 161. This family squabble about a will & a Camps Bay house has been preceded by a welter of cases, all the way up to the SCA & back, none of which I am able to track down. The judgment is by Henney J. Shelley Van Acker removed as executrix of the estate of the late DA Bagnall, & the sale of the house by the curator bonis to the Danem Trust effectively allowed to proceed.

Tax court case 11 December 2020: SARSTC 24863 (ED) [2020] (Johannesburg). Heard by Seneke AJ. Whether 1673 Krugerrand should be valued under s 5(1)(a) (proceeds of sale in course of liquidation) or s 5(1)(g) (value as at the date of death) of the Estate Duty Act. The deceased’s daughter & executrix did not have a great defence, the gold having been sold to pay for taxes & costs.*

SCA case 18 December 2020: President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/19) [2020] ZASCA 177. Per Saldulker & Van der Merwe JJA:

What this Court has done is craft an effective and comprehensive order in an endeavour to cure the hardship suffered by parties to Muslim marriages, especially vulnerable women and children, that will operate until appropriate legislation is put in place. In the circumstances, for the reasons advanced, the orders granted by the high court must be replaced and the interim relief in para 5 of the high court order cannot stand.

The importance of recognizing Muslim marriages in our constitutional democracy cannot be gainsaid. In South Africa, Muslim women and children are a vulnerable group in a pluralistic society such as ours. The non-recognition of Muslim marriages is a travesty and a violation of the constitutional rights of women and children in particular, including, their right to dignity, to be free from unfair discrimination, their right to equality and to access to court. Appropriate recognition and regulation of Muslim marriages will afford protection and bring an end to the systematic and pervasive unfair discrimination, stigmatisation and marginalization experienced by parties to Muslim marriages including, the most vulnerable, women and children.…



2021 High Court case 08 January 2021: Engelbrecht NO v Master of the High Court, Kimberly and

Others (432/2020) [2021] ZANCHC 11. About an explicit habitatio created in a will & the rights flowing from such a thing, heard by Lever AJ. Fed up with constant disputes over the habitatio, the executor approached the court for a declaratory order. Cleverly, he asked that costs be awarded against the estate, unless the application should be opposed. The other side stumbled arrogantly & disrespectfully right into the trap:

Then the opposing respondents make a number of contentions in interpreting clause B(i) of the will. Firstly, they contended that the right of habitatio has been defined in an ante-nuptial contract which was executed in 1985 and it was therefore not necessary for the testator to repeat such definition. Secondly, they contend that the surrounding circumstances explain what clause B(i) means. Finally, they contend that there is a ‘latent ambiguity’ in the provisions of clause B(i) of the relevant will. That such latent ambiguity emerges when one considers certain evidence external to the relevant will.

In support of their arguments the opposing respondents annex to their answering affidavit an opinion of a Senior Counsel which appears to have been dated at Bloemfontein on the 23 June 2011. The said opinion deals with the very questions that are before me for decision. This is the first time that I have ever come across such practice and it is certainly not a practice that should be encouraged.

Certainly, the opposing respondents would have been free to argue the views espoused in the relevant opinion when they argued the matter before this court, and I would then have considered such views on their merits. However, to insert such opinion into the record and by implication intimate that its source must somehow sway my views is at least inappropriate.

To make matters worse, there are certain passages that are clearly missing from the said opinion. Further, the opinion is based on the instructions given to such Senior Counsel in a letter to him from the then instructing attorney. This letter does not form part of the record. In such circumstances the factual basis upon which the opinion was given is not fully disclosed. The applicant has indicated that he has the same complaints. Accordingly, I shall simply ignore the said opinion.

Concourt case 19 February 2021: King NO and Others v De Jager and Others (CCT 315/18) [2021] ZACC 4. A 100-year-old will, containing a ‘fideicommissum substitution’ discriminating against female descendants. Three judgments, all favouring the applicants, although for different reasons. Set aside were the orders in King NO and Others v De Jager and Others (21972-2015) [2017] ZAWCHC 79 (10 August 2017) (Bozalek J; see 174, 175 TSH 2017). The appeal to the SCA seems to be unreported. There the applicants’ application for a declaratory order in their favour was dismissed, without any reasons being supplied. Jafta J for the majority (footnotes suppressed):

The fideicommissary property was supposed to pass from the deceased and his brother to their respective sons only. Indeed, when Mr John de Jager died in 2005, his half share was inherited by his three sons who are the first to third respondents in these proceedings.…

…. But in the present matter the position is that clause 7 which contains the

fideicommissary condition is invalid for being contrary to public policy. In our law the effect of this invalidity is that the bequest to the deceased which this clause purported to regulate is regarded as having been without a condition. What this means is that the property concerned was transferred to the deceased, as a fiduciary unburdened with conditions. Therefore, it formed part of his estate that was subject to the will he had executed and in terms of which he had bequeathed that property to the applicants.

This common law principle was lucidly articulated in Levy. With reference to common law authorities, on the point Price J distilled the principle that a fideicommissum condition that is contrary to law or public policy is treated pro non scripto (as if it was never written) and the heir under the will concerned succeeds unconditionally. This position is altered only where the deletion of the condition renders the remaining bequest meaningless. Here that is not the position. It is clear from the will that the testators wished to keep the fideicommissary property in the hands of their male descendants until the third generation.

deceased estates case law 2005 to date

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