Du Plessis NO v Strauss (402/1986) [1987] ZASCA 129; [1988] 4 All SA 115 (AD) (12 November 1987)

Du Plessis NO v Strauss (402/1986) [1987] ZASCA 129; [1988] 4 All SA 115 (AD) (12 November 1987)

The Supreme Court of Appeal held that, according to South African common law as derived from Roman-Dutch authorities, a sine liberis condition in a will, coupled with a conditional fideicommissum, creates a presumption that the testator intended to benefit the descendants of the fiduciary as fideicommissary beneficiaries, provided they are direct descendants. The Court rejected the argument that longstanding but incorrect lower court decisions should be followed for the sake of uniformity, finding no compelling reason to perpetuate an erroneous interpretation. The Court further held that the presumption applies even if the expressly named fideicommissaries are also descendants of the...

Citation
[1987] ZASCA 129
Parties
Appellant: R.D. Du Plessis N O; Respondent: J.F. Strauss
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 November 1987
Case Number
402/1986
Procedural Posture
Civil Appeal / Appeal From the Free State Provincial Division, Challenging the Setting Aside of Paragraph 2(c)1.2 of a Rule Nisi.
Outcome
Appeal dismissed with costs, including costs of two counsel, jointly and severally recoverable from the insolvent estate and the company in liquidation as part of the costs of administration and liquidation.
Judges
Corbett, Joubert, Van Heerden, Jacobs, Nicholas
Legal Topics
Fideicommissum Tacitum, Sine Liberis Condition, Testamentary Intent, Succession, Common Law Presumption
Land and Property Fideicommissum Tacitum Sine Liberis Condition Testamentary Intent Succession Common Law Presumption

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

R.D. Du Plessis N O

Appellant

J.F. Strauss

Respondent

Procedural Posture

Civil Appeal / Appeal From the Free State Provincial Division, Challenging the Setting Aside of Paragraph 2(c)1.2 of a Rule Nisi.

Legal Issues

  1. 1 Does a sine liberis condition in a will create a presumption that the testator intended to benefit the descendants of the fiduciary as fideicommissary beneficiaries?
  2. 2 Is the presumption applicable only when the descendants are in the direct line of the testator?
  3. 3 Should longstanding but incorrect lower court decisions be followed for the sake of uniformity?

Ratio Decidendi

The Supreme Court of Appeal held that, according to South African common law as derived from Roman-Dutch authorities, a sine liberis condition in a will, coupled with a conditional fideicommissum, creates a presumption that the testator intended to benefit the descendants of the fiduciary as fideicommissary beneficiaries, provided they are direct descendants. The Court rejected the argument that longstanding but incorrect lower court decisions should be followed for the sake of uniformity, finding no compelling reason to perpetuate an erroneous interpretation. The Court further held that the presumption applies even if the expressly named fideicommissaries are also descendants of the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel, jointly and severally recoverable from the insolvent estate and the company in liquidation as part of the costs of administration and liquidation.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • Costs are jointly and severally recoverable from the insolvent estate and the company in liquidation as part of the costs of administration and liquidation.