De Bruin v Stoffberg N.O and Others (3694/2018) [2020] ZAFSHC 269 (30 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case Number: 3694/2018

In the matter between:

ADRIANA MARTHA MARIA DE BRUIN Applicant

And

MARIUS STOFFBERG, N.O First Respondent

MARIUS STOFFBERG Second Respondent

MARIA ALICIA DU TOIT

Third Respondent

JOHANNES JACOBUS DU TOIT Fourth Respondent

MARIA ALICIA DU TOIT, N.O. Fifth Respondent

JOHANNES JACOBUS DU TOIT, N.O. Sixth Respondent

ARMORY BOEDERY CC Seventh Respondent

MASTER OF THE HIGH COURT, Eight Respondent

BLOEMFONTEIN

JOHANNES CHRISTIAAN DE WET COEN Ninth Respondent

ZANRI JOUBERT Tenth Respondent

HAROLD WILSON COEN Eleventh Respondent

SBRO BROKER / FINANCIAL SERVICES Twelfth Respondent

(PTY) LTD (Registration No: 2001/0103379/07)

HERMANUS SAMUEL MARAIS Thirteenth Respondent

MARIUS STOFFBERG, N.O.

HEARD ON: This matter was disposed of without the hearing of oral arguments as provided for in s 19(a) of the Superior Courts Act 10 of 2013.

JUDGMENT BY: DANISO, J

DELIVERED ON: 30 JULY 2020

[1] The applicant seeks leave to appeal to the Supreme Court of Appeal alternatively to the full bench of this division against the whole judgment and order delivered by Reinders J on 23 January 2020 dismissing the applicant’s application to declare the will and the sale agreement executed by Ms Adriana Martha Maria De Bruin (“the deceased”) on 12 October 2011 invalid and for the review and setting aside of the Master of the High Court’s decision to accept the deceased’s will.

[2] On 14 February 2020 the applicant filed a notice of application for leave to appeal with the Registrar. On 18 February 2020 the first to the seventh and twelfth respondents only filed a notice to oppose the application without any opposing affidavits. Having regard to the special measures relating to the conduct of court proceedings during the Covid-19 related lockdown, on 06 March 2020 I directed the parties to submit written heads of arguments for the matter to be determined without the oral hearing. The applicant’s written heads of argument were ultimately filed on 27 May 2020. There has been no reaction from the respondents.

[3] The applicant’s application is based on the provisions of Section 17(1) (a) (i) or (ii)[1] which fundamentally enjoins me to grant leave only if I’m of the opinion that the appeal would have a reasonable prospect of success or there is some other

compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

[4] The applicant must convince this court that she has prospects of success on appeal and that based on those facts another court would come to a different conclusion.

[5] The facts of this matter are comprehensively illustrated in the main judgment I deem it unnecessary to repeat them in this judgment.

[6] The grounds for leave to appeal are embodied in the applicant’s notice of application for leave to appeal. I will also not repeat them verbatim except to refer to the relevant parts thereof for the purpose of this judgment. The applicant’s case is essentially that the court should have found that the deceased’s will was invalid for lack of compliance with the formalities of the Wills Act[2] in that the deceased’s decision making process in executing the said will was undermined by the influence of the first, second, third and fourth respondents who were at all material times acting in concert with each other with the intent to squander the estate of the deceased.

[7] In the main judgment the court meticulously considered the factors upon which the applicant relied on to conclude that the will was not properly executed and that it also does not reflect the deceased’s true intentions. The respondents’ opposing version gainsaid the applicant’s version, namely that the will and the sale agreement were actually not drafted nor presented to the deceased for signature in the absence of witnesses by the second respondent at her own home. The said documents were in fact drafted by the deceased’s attorney who transmitted same to the office of the second respondent where they were duly signed by the deceased in the presence of her two witnesses.

[8] The respondents’ affidavit raised genuine dispute of facts worthy to be accepted for the determination of the issues between the parties. The onus of proof lies with the applicant who attacks the validity of the will. It’s not enough to merely allege undue influence, the applicant must also prove that when executing the will the deceased was influenced to the extent that her free will was completely oppressed. By choosing to proceed with this matter by way of motion proceedings the applicant confined herself to have the prevailing disputes of facts decided on the affidavits alone landing herself in an unenviable position of not being able to discharge the onus laid on her. On the facts germane to this matter the facts upon which the applicant relied to support the conclusion that the will was not properly executed and it also does not reflect the deceased’s true intentions were unpersuasive to support her case against the respondents.

[9] The applicant concedes that the deceased’s utterances to the applicant in which she divulged that she was coerced into signing the will and the sale agreement constitute hearsay evidence. The applicant nevertheless contends that the court should have allowed the evidence aliunde including the hearsay evidence on the basis that it carries equivalent weight and value to direct evidence in these circumstances where the main witness is deceased therefore cannot testify.

[10] It is indeed trite that direct evidence of undue influence is rare due to the fact that if it happens it would usually be behind closed doors (so to speak) and the testator of the contested will cannot testify as he or she is deceased. The evidence of surrounding factors must therefore be taken into account in the determination of whether there was undue influence. A series of factors such as the discussions between the applicant and the deceased, the involvement of the beneficiaries of the will in the drafting of the will, the deceased’s vulnerability and dependence to the beneficiaries are factors that the court should and has indeed alluded to in its reasons for the judgment. See page 11 of the judgment. What must also be shown is that those facts are consistent with the hypothesis of undue influence, namely that there can be no other reason why the second respondent being the financial advisor of the deceased and the third and the fourth respondents is a also the person who procured a life cover policy for the deceased and was also the nominated executor of the deceased’s estate except that he and the third and fourth respondents were in collusion to exert influence on the deceased to execute a will which benefited them. On the available evidence the applicant has not succeeded in doing so.

[11] The mere fact that the second respondent was the deceased’s financial advisor and insurance agent does not warrant his removal as the executor of the deceased estate.

[12] Ex facie the disputed will complied with all the formalities of executing a will prescribed by section 2 (1) of the Wills Act. The Master was therefore entitled to accept it. The Master’s decision to accept a will is purely an administrative act which has no bearing on the issue of validity of a will that is the prerogative of the court. There are no valid reasons warranting the review and setting aside of the Master’s decision to accept the deceased’s will.

[13] It is the applicant’s case that the court should have set aside the agreement in which the deceased sold 33.3% of her member’s interest in the close corporation to the fourth respondent as the agreement is void ab initio for lack of compliance with all the essentialia of a valid contract. The court also erred in finding that the applicant had no locus standi to challenge the validity of the said agreement.

[14] The validity of a contract can only be challenged by one or both parties to the contract, the seller and /or the purchaser. In matters relating to legal proceedings on behalf of a deceased estate the proper person to act in such instances is the executor. The beneficiary does not have locus standi to do so. The locus classicus on this issue is Gross & Others v Pentz [1996] ZASZA 78: [1996] ZASCA 78; 1996 (4) SA 617 (A) at 623 B -625 E.

[15] I am of the view that the main judgment has adequately dealt with all the aspects raised in the grounds of appeal. I am not persuaded that another court will reasonably come to another conclusion or that compelling reasons exists why leave to appeal should be granted.

[16] In the result the following order is made:

1. The application for leave to appeal to the Supreme Court of Appeal (SCA) alternatively to the Full Bench of this division against the order/judgment of Reinders J granted on 23 January 2020 is dismissed with costs.

NS DANISO, J

For the applicant: HALSE, HAVEMANN & LLOYD

C/O PHATSOANE HENNEY ATTORNEYS

Bloemfontein.

For the respondents HUMAN LE ROUX & MEYEROWITZ

(1st-7th and 12th-13th) C/O LOVIUS BLOCK ATTORNEYS

Bloemfontein

For the (8th) respondent STATE ATTORNEY

C/O LOVIUS BLOCK ATTORNEYS

[1] Superior Courts Act 10 of 2013 .

[2] Act No 7 of 1953.